Filing # 41899838 E-Filed 05/24/2016 01:31:29 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY

STATE OF FLORIDA

CITIZENS FOR STRONG SCHOOLS, INC.;

FUND EDUCATION NOW;

EUNICE BARNUM;

JANIYAH WILLIAMS;

JACQUE WILLIAMS;

SHEILA ANDREWS;

ROSE NOGUERAS; and

ALFREDO NOGUERAS;

Plaintiffs,

vs. Case No. 09-CA-4534

FLORIDA STATE BOARD OF EDUCATION;

ANDY GARDINER, in his official capacity as the

Florida Senate President;

STEVE CRISAFULLI, in his official capacity as

the Florida Speaker of the House of Representatives;

and PAM STEWART, in her official capacity

as Florida Commissioner of Education;

Defendants.

and

CELESTE JOHNSON; DEAUNDRICE KITCHEN;

KENIA PALACIOS; MARGOT LOGAN;

KAREN TOLBERT; and MARIAN KLINGER;

Intervenors/Defendants

/

APPENDIX FOR

FINDINGS OF FACT

Filing # 41899838 E-Filed 05/24/2016 01:31:29 PM

i

TABLE OF CONTENTS

FINDINGS OF FACT..........................................................................................................1

Findings Related to the Structure of Florida‘s System of Free Public I.

Schools .........................................................................................................1

Findings Related to the Conditions Necessary to Ensure that All II.

Children are Allowed the Opportunity to Obtain High Quality

Education ...................................................................................................10

A. Personnel Needed ...............................................................................12

B. Instructional Time ...............................................................................14

C. Resources Are Necessary to Provide a High Quality Education ........15

Findings Related to Florida‘s K–12 Education Policies and Programs .....15 III.

Content Standards ..........................................................................16 A.

Aligned Assessments and Accountability System .........................31 B.

School Grading and Accountability ...............................................44 C.

Retention and Promotion ...............................................................47 D.

Graduation Requirements ..............................................................52 E.

Teacher Quality and Educator Policies ..........................................55 F.

School Improvement and Differentiated Accountability ...............64 G.

Discipline Policies .........................................................................70 H.

Findings Related to Student Performance and Outcomes ..........................71 IV.

National Assessment of Educational Progress (―NAEP‖) .............72 A.

International Assessments ..............................................................79 B.

State Assessments ..........................................................................80 C.

Advanced Placement ......................................................................85 D.

Graduation and Drop-Out Rates ....................................................87 E.

Non-Promotion/Retention Rates ....................................................91 F.

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Findings Related to Florida‘s School Funding System..............................92 V.

Overview ........................................................................................92 A.

The Florida Education Finance Program (―FEFP‖) .......................93 B.

State Categorical Funding ............................................................105 C.

Non-FEFP State Funding .............................................................106 D.

Capital Outlay Funding ................................................................107 E.

Local Funding and School District Capacity - (Subject to F.

Voter Approval) ...........................................................................113

Federal Funding ...........................................................................115 G.

The State Budget Process.............................................................118 H.

Florida‘s Commitment to Funding Education .............................121 I.

―Cost Studies‖ ..............................................................................130 J.

Findings Related to Resources in Florida Schools and School VI.

Districts ....................................................................................................134

Budgets and Expenditures............................................................134 A.

School District Programs and Accomplishments ........................139 B.

Accreditation of Districts and Schools ........................................141 C.

Availability of Effective Teachers ...............................................144 D.

Compliance with Class Size.........................................................146 E.

District and School Improvement Plans ......................................147 F.

Facilities .......................................................................................147 G.

Instructional Resources ................................................................150 H.

Findings Related to Special Programs and Populations ..........................151 VII.

Career and Technical Education ..................................................151 A.

Virtual Education .........................................................................152 B.

Enhancement Programs and Dual Enrollment .............................153 C.

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English Language Learners..........................................................154 D.

Students with Disabilities ............................................................157 E.

Students Eligible for Free-and-Reduced-Price Lunch .................160 F.

Students Experiencing Homelessness ..........................................161 G.

Findings Related to Choice Programs......................................................163 VIII.

Charter Schools ............................................................................163 A.

Florida Tax Credit Scholarship Program .....................................165 B.

McKay Scholarship for Students with Disabilities ......................167 C.

Findings Related to Causation .................................................................169 IX.

FINDINGS OF FACT1

Findings Related to the Structure of Florida’s System of Free Public Schools I.

Florida‘s K–12 system of free public schools is a large and complex system 1.

comprised of 67 locally-elected school boards that operate, control and supervise over 4,000

schools, and educate more than 2.7 million students as of the 2014–15 school year.2

The Florida student population is among the most diverse in the nation,3 with a 2.

majority of students who are ethnic and racial minorities;4 58% of students who are eligible for

free-and-reduced-price lunch (an indicator of poverty);5 13% of students who have disabilities

and receive special education services;6 and 10% of students who are English language learners

(―ELLs‖).7

Students are educated in a wide variety of programs and settings, including 3.

traditional elementary, middle and high schools; charter schools; dual enrollment programs in

which students attend part of their school day at a college or university; online education through

multiple virtual school options; career and technical education with industry certifications;

acceleration programs such as Advanced Placement, International Baccalaureate, Advanced

International Certificate of Education; and schools of choice which specialize in particular

1 Any ―finding of fact‖ that should more appropriately be characterized as a conclusion of law

shall be considered a conclusion of law.

2 Exs. 3350, 5330, 5342; Tr. Vol. 26 at 3956:15–23, 3948:15–19 (Test. of P. Stewart).

3 Exs. 4058, 4059, 4060, 4061.

4 Exs. 186, 3351, 3356.

5 Ex. 3355.

6 Ex. 3354.

7 Ex. 3353.

2

subject areas or meet a need in the community, e.g., performing arts or Science, Technology,

Engineering and Mathematics (―STEM‖) magnet schools.8

Florida also provides a program to be used for private school tuition for students 4.

with disabilities through the McKay Scholarship Program as well as a scholarship program for

students from low income families and children in the foster care system through the Florida Tax

Credit Scholarship Program.

Education policies, programs, and funding decisions are developed and 5.

implemented throughout the State as the result of input and action of multiple stakeholders,

including the Florida Legislature, the State Board of Education, the Commissioner of Education,

the Florida Department of Education, locally-elected school boards, locally-elected or appointed

school superintendents, as well as school district administrators, school principals, classroom

teachers, and the public at large. In addition, education policies, programs, and funding in

Florida are impacted by the requirements of federal law.9

Teachers, teachers‘ unions, parents, students, postsecondary education preparation 6.

and leadership programs, community groups, and advocacy groups are also key stakeholders

who are actively involved in providing input and influencing education policies, programs, and

funding decisions at both the state and local levels.10

The Florida Legislature has the exclusive constitutional authority to fix 7.

appropriations for the state budget. Art. VII, §1, Fla. Const. The Florida Legislature is

authorized to appropriate state funds to school districts ―upon such conditions as may be

8 Ex. 5342; Tr. Vol. 26 at 3948:12–3953:12 (Test. of P. Stewart).

9 Exs. 5330, 5342; Ex. 3683 at 00103643; Tr. Vol. 26 at 3954:1–3958:2 (Test. of P. Stewart); Tr.

Vol. 33 at 4944:21–4947:10 (Test. of L. Champion).

10 Ex. 5330; Ex. 3683 at 00103643; Tr. Vol. 26 at 3954:1–3958:2 (Test. of P. Stewart); Tr. Vol.

33 at 4944:21–4947:10 (Test. of L. Champion).

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provided by general law. These conditions may include the use of relative ad valorem

assessment levels determined by a state agency designated by general law.‖ Art. VII, §8, Fla.

Const.

At the state level, the Florida Legislature establishes education policies through 8.

the passage of laws and the state budget. Each year, the Legislature as a whole, and specific

education and appropriation committees, consider input from constituents and education

stakeholders, including from the Department of Education, local school boards and officials,

superintendents, and many other individuals, community groups, advocacy groups, and experts

in educational matters. Education policy and funding levels are determined in the context of a

constitutional requirement of a balanced budget, economic conditions, requirements of state and

federal law as well as the priorities and needs of the State as expressed by the voters.11

The Executive Branch of the State of Florida is led by the Governor. The 9.

Governor‘s office includes staff assigned to education issues and an Office of Policy and Budget

with an education unit. The Governor impacts education policy and funding in several ways,

including by appointment of the State Board of Education, the exercise of authority to sign or

veto legislation, and through the authority to propose an education budget and related policy

initiatives.12

The State Board of Education is a seven-member board appointed by the 10.

Governor to staggered four-year terms, subject to confirmation by the Senate.13

The State

11 Ex. 3436; Ex. 3683 at 00103643; Tr. Vol. 26 at 4050:20–4052:6 (Test. of P. Stewart); Tr. Vol.

33 at 4944:21–4947:10 (Test. of L. Champion). The budgeting process is described in detail in

Section IV.C, below.

12 §§ 1001.01–.03, Fla. Stat.; Ex. 3683 at 00103643; Ex. 5330; Tr. Vol. 26 at 3954:18–3955:5

(Test. of P. Stewart); Tr. Vol. 33 at 4944:21–4947:10 (Test. of L. Champion).

13 Art. IX, § 2, Fla. Const.; § 1001.01, Fla. Stat.

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Board‘s responsibilities include adopting education objectives and strategic plans for public

education in Florida, supervising the Department of Education, submitting an annual Legislative

Budget Request, adopting uniform student content standards, and implementing the state testing

and accountability system. Standards, testing, and accountability are implemented through rules,

which require public input.14

The State Board of Education appoints the Florida Commissioner of Education, 11.

who is the chief executive officer of the Department of Education. The Commissioner is

responsible for supporting the State Board of Education in strategic planning, budget

development, assessment and accountability, administration, and managing the day-to-day

operations of the Department of Education.15

The Florida Department of Education has over 1,000 employees and is 12.

responsible for the enforcement of education law and regulations, and for promoting and

implementing education policies and programs at the state level. This role includes development

of student content standards, selection and implementation of state testing programs,

implementation of school accountability and support for school improvement, certification of

educators and approval of educator preparation programs, administration of the Florida

Education Finance Program (―FEFP‖), and administration and monitoring of federal education

grants.16

The State Board of Education shall ―have such supervision of the system of free 13.

public education as is provided by law.‖ Art. IX, § 2, Fla. Const. The district school system

14 §§ 1001.01–.02, Fla. Stat.; Tr. Vol. 26 at 3958:16–3959:11 (Test. of P. Stewart).

15 §§ 1001.10–.11, Fla. Stat.; Tr. Vol. 26 at 3932:1–19 (Test. of P. Stewart).

16 §§ 1001.20–.29, Fla. Stat.; Tr. Vol. 26 at 3958:16–23, 3966:25–3967:10, 3970:1–4, 3970:9–

3971:1 (Test. of P. Stewart); Tr. Vol. 33 at 4944:21–4947:10, 4934:16–24 (Test. of L.

Champion).

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―shall be considered as part of the state system of public education.‖ § 1001.32, Fla. Stat.

(2015). The State Board of Education ―shall enforce compliance with law and state board rule

by all school districts.‖ § 1001.03(8), Fla. Stat. (2015).

The State Board of Education is required to adopt and submit to the Legislature a 14.

coordinated K-20 budget, as provided in § 216.023, Fla. Stat., which includes expenditure

requirements of the State Board of Education, the Department of Education, and the

Commissioner of Education. § 1001.02(2)(e), Fla. Stat. (2015). Florida Statute section 216.023

requires agencies to submit budget requests based on the agency‘s ―independent judgment of its

needs.‖

The State Board of Education is required to ―perform such other duties as may be 15.

necessary for the enforcement of laws and rules relating to the state system of public education,‖

§ 1001.02(f); adopt rules within statutory authority, § 1001.02(n); ―authorize the allocation of

resources within law and rule,‖ § 1001.02(o); ―enforce system-wide education goals and policies

except as otherwise provided by law,‖ § 1001.02(r); and ―establish accountability standards for

existing legislative performance goals, standards, and measures, and order the development of

mechanisms to implement new legislative goals, standards, and measures,‖ § 1001.02(t).

The State Board of Education is responsible for developing and revising the 16.

public K-12 curricular standards, certification requirements for all K-12 personnel, identification

of critical teacher shortage areas, and system-wide enforcement of law and state board of

education rules. § 1001.03, Fla. Stat. (2015).

The Commissioner is required to ―annually report the state‘s educational 17.

performance on state and national measures and shall recommend to the State Board of

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Education performance goals addressing the educational needs of the state.‖ § 1001.11(2), Fla.

Stat. (2015).

The Department of Education is ―an administrative and supervisory agency under 18.

the implementation direction of the State Board of Education.‖ § 1001.20(1), Fla. Stat. (2015).

Under Article IX, Section 4(b) of the Florida Constitution, local boards of 19.

education are charged with the operation, control, and supervision of all free public schools

within their respective school districts, as well as determining the rate of school district taxes

within the limits prescribed by the Constitution.17

School boards have a minimum of five

members and are elected to four-year terms within their local communities.18

The Florida Legislature recognizes that ―Public education is a cooperative 20.

function of the state and local educational authorities. The state retains responsibility for

establishing a system of public education through laws, standards, and rules to assure efficient

operation of a K-20 system of public education and adequate educational opportunities for all

individuals. Local educational authorities have a duty to fully and faithfully comply with state

laws, standards, and rules and to efficiently use the resources available to them to assist the state

in allowing adequate educational opportunities.‖ § 1000.03(3), Fla. Stat. (2015). School boards

are responsible for implementing state requirements, but make many important decisions

regarding the actual delivery of education and the operation of schools, such as establishing

schools and attendance zones, enrollment, provision of instruction, curriculum, student progress

and retention, and student discipline. School boards also are responsible for the recruiting,

17 Art. IX, § 4(b), Fla. Const.; see also §§ 1001.30–.33, Fla. Stat.

18 §§ 1001.34–.362, Fla. Stat.; Tr. Vol. 26 at 3956:18–23 (Test. of P. Stewart).

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hiring, assignment, and evaluation of teachers and all other staff, the construction and

maintenance of school facilities, budgeting and taxing, collective bargaining, and salaries.19

As of the 2015–16 school year, local school boards employed over 170,000 21.

teachers and over 150,000 other staff, and managed budgets in excess of $26 billion.20

Florida school district superintendents are either appointed or elected.21

In the 67 22.

county school districts, 25 superintendents are appointed by their respective school boards, and

42 superintendents are elected by the voters. Superintendents are responsible for managing the

day-to-day operations of a school district, and make decisions based on local needs and

preferences, as well as input and direction from their school boards, educators, parents and

community groups.22

The Court notes and emphasizes the extremely important role of local school 23.

boards and school district personnel within the constitutional structure of the education system in

Florida, as summarized above and detailed in Section V of these findings. The decisions these

boards and personnel make directly impact the quality of education that students experience.

School boards and school district personnel make critical decisions about the management of

schools and the allocation of resources that are consequential and do not involve Defendants in

this case.

Federal law and policies also impact the education system in Florida in many 24.

ways, including, for example, by imposing requirements for the education of students with

19 §§ 1001.41–.42, 1001.43, Fla. Stat.; Tr. Vol. 26 at 3973:7–17, 3974:23–3975:13, 3977:4–9,

3975:24–3976:6, 3977:15–17 (Test. of P. Stewart).

20 Exs. 3481, 3482, 3483; Tr. Vol. 26 at 3953:8–12, 4058:8–14 (Test. of P. Stewart); Tr. Vol. 32

at 4855:3–7, 4861:4–7 (Test. of L. Champion).

21 Art. IX, § 5, Fla. Const.

22 §§ 1001.49–.51, Fla. Stat.; Tr. Vol. 26 at 3956:24–3957:2, 3973:7–17 (Test. of P. Stewart).

8

disabilities (Individuals with Disabilities Education Act (―IDEA‖)23

) and Section 504 of the

Rehabilitation Act of 197324

), ELLs (Title III of the Elementary and Secondary Education Act25

),

and homeless students (McKinney-Vento Homeless Assistance Act26

), among other student

groups and programs.27

Compliance with federal law, however, does not equate with whether

the State has fulfilled their duties under Florida‘s Constitution.

The federal government also imposes many requirements in exchange for federal 25.

grant dollars and other support.28

Pursuant to the Elementary and Secondary Education Act of

1965 (―ESEA‖), as reauthorized by the No Child Left Behind Act of 2002 (―NCLB‖), federal

law requires states to develop and implement academic standards, annually test students against

such standards and have plans to hold schools accountable for meeting the standards over time.29

NCLB also required that students be given the opportunity to transfer from schools that did not

meet adequate yearly progress (―AYP‖) to schools that did meet AYP requirements.30

In

addition, all states must participate in a national testing program called the National Assessment

of Educational Progress (―NAEP‖ or the ―Nation‘s Report Card‖) in which many states,

including Florida, have participated for many years.31

23 20 U.S.C. §§ 1400–1482.

24 29 U.S.C. § 794.

25 20 U.S.C. §§ 6801–7014.

26 42 U.S.C. §§ 11431–11435.

27 Tr. Vol. 26 at 3977:18–3978:8 (Test. of P. Stewart).

28 Tr. Vol. 26 at 3957:3–14 (Test. of P. Stewart).

29 20 U.S.C. § 6311(b); Tr. Vol. 26 at 3978:22–3979:9 (Test. of P. Stewart); Tr. Vol. 29 at

4329:2–25 (Test. of J. Copa).

30 20 U.S.C. § 6316, repealed by Every Student Succeeds Act, Pub. L. No. 114-95, 129 Stat.

1814 (2015).

31 20 U.S.C. § 6311(a)(1)(b), (g)(2)(D); Exs. 1358, 1390, 1391; Tr. Vol. 26 at 3996:3–6 (Test. of

P. Stewart); Tr. Vol. 29 at 4455:4–4456:1 (Test. of J. Copa).

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Specifically as to statewide annual assessments, states must measure proficiency 26.

of students in, at a minimum, English language arts, math, and reading no less than once during

each age band: grades 3-5, grades 6-9, and grades 10-12.32

In late 2015, NCLB was replaced by the Every Student Succeeds Act (―ESSA‖) 27.

and requires, among other things, the development of college and career readiness standards,

annual statewide testing of all students, student performance targets and school ratings,

accountability and interventions for low performing schools, evaluation of teachers based on

student learning, and programs to replicate effective charter schools.33

It should be noted that many of the education policies and programs about which 28.

Plaintiffs complain in this case, including the assessment and accountability system, teacher

evaluations tied to student performance, charter schools, and other choice programs, are either

mandated or incentivized by federal policy and funding.34

The U.S. Department of Education monitors school district and states‘ compliance 29.

with federal educational requirements on a periodic basis.35

Pursuant to this federal monitoring, the record reflects that Florida is in 30.

compliance with federal requirements as related to the education services for students with

disabilities, ELLs, and homeless students.36

32 No Child Left Behind Act, PL-107-110 (Jan. 8, 2002), (NCLB), Sec. 1111(b)(3).

33 Every Student Succeeds Act, Pub. L. No. 114-95, 129 Stat. 1814 (2015); Ex. 4048; Tr. Vol. 29

at 4328:10–4331:18 (Test. of J. Copa).

34 Tr. Vol. 26 at 3978:22–3979:9 (Test. of P. Stewart); Tr. Vol. 29 at 4324:3–19, 4334:8–10,

4363:8–11, 4370:19–4371:8 (Test. of J. Copa); Tr. Vol. 31 at 4659:19–4660:11 (Test. of M.

Tappen); Tr. Vol. 32 at 4758:11–22, 4763:22–4764:7 (Test. of K. Hebda); Tr. Vol. 36 at

5307:22–5310:5 (Test. of A. Miller).

35 Exs. 1406, 1409, 1410, 1411, 1412, 1471, 1472.

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The Court finds that there is a similar record of compliance for federally funded 31.

programs at the school district level.37

Findings Related to the Conditions Necessary to Ensure that All Children are II.

Allowed the Opportunity to Obtain High Quality Education

In order to provide educational opportunity to all children as the Florida 32.

Constitution requires, school districts need to respond to children‘s needs at whatever level they

are to make that educational opportunity meaningful.38

A considerable number of children come to school not ready to learn, without 33.

having the background that more privileged children have.39

There is a clear disparity in the

performance of economically disadvantaged students versus those who are not economically

disadvantaged.40

While not every student who comes from poverty household starts school behind 34.

their wealthier peers, significant numbers do. Students living in poverty require a variety of

additional resources in order to succeed at school. They have not been exposed to the same

vocabulary and background knowledge and have less parental involvement.41

They need

36 Exs. 1409, 1410, 1411, 1412, 1471, 1472; Tr. Vol. 8 at 1220:25–1221:8, 1233:4–1235:4 (Test.

of L. Allen); Tr. Vol. 31 at 4657:23–4658:3, 4687:2–3 (Test. of M. Tappen).

37 Ex. 0338; Tr. Vol. 31 at 4657:23–4658:16, 4659:15–18 (Test. of M. Tappen); Tr. Vol. 5 at

719:7–20 (Test. of N. Vitti); Tr. Vol. 6 at 902:21–904:6, 906:11–907:4 (Test. of O. Roberts); Tr.

Vol. 7 at 1015:7–1020:18 (Test. of G. Littleton); Tr. Vol. 8 at 1087:10–1088:17 (Test. of N.

Marks); Tr. Vol. 11 at 1513:5–13 (Dep. Test. of M. Burke); Tr. Vol. 22 at 3280:19–3281:14

(Test. of D. Robinson); Tr. Vol. 23 at 3505:24–3506:2 (Dep. Test. of J. Hiltz); Tr. Vol. 24 at

3639:14–3670:10, 3563:2–8 (Dep. Test. of J. Marte).

38 Rebell, v.2, 103:19-24.

39 Bowles, v.19, 2773:23-2774:8; Cook, v.13, 1889:19-1890:8.

40 Roberts, v.6, 761:4-25; also see Ex. 5343.

41 Vitti, v.5, 596:21-25; 597:1-6

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language development, hands-on opportunities, and opportunities to play42

and access to

experiences and activities as simple as being read fairy tales.43

Children from high poverty backgrounds are much less likely to experience 35.

supportive practices. Families often lack access to the social and political networks that allow

them to be effective advocates for their children.44

It is important to emphasize that poverty is

not an excuse, children can achieve regardless of socio-economic background, but often this

requires extra resources that the state funding formula does not provide.45

Former Commissioner Frank Brogan, a witness for the State, explained: 36.

… poverty is clearly a challenge, continues to be, for children all over the

country, but at the end of the day, it‘s not a stop point. It is a challenge to be

overcome, and that‘s why public education, in part, exists, is to help children of

all color, all socioeconomics, all family structure, native tongue, socioeconomic

levels, come together in a public education system and find ways to achieve at a

level that will give them their opportunity to live, not just dream the great

American dream.46

There are conditions that are necessary for school districts to establish in order to 37.

ensure that all children who are behind academically can ―catch up,‖ which may include smaller

class sizes, additional time learning, and services to address academic, mental health and

behavior issues.47

42 Roberts, v.6, 769:25-770:11; Bowles, v.19, 2774:9-19.

43 Cook, v.13, 1892:15-1893:7.

44 Hanushek, v.28, 4294:13-22.

45 Vitti, v.5, 597:7-12.

46 Brogan, v.37, 5551:10-20.

47 Vitti, v.5, 597:16-25; 597:1-5.

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A. Personnel Needed

In addition to effective teachers, there is a team of professionals who are 38.

necessary to support the needs of low performing students. For students to be able to achieve

academically, behavioral supports and social-development tools are needed in school in order to

help students achieve academically.48

Behavior specialists analyze students‘ misbehaviors in school, draft behavior 39.

intervention plans, assist teachers in redirecting the misbehaviors, and teach students to learn

appropriate behaviors.49

The importance of behavior specialists is recognized by the State as

they are a required component of school district leadership teams for schools that are in district-

managed turnaround status.50

Mental health counselors help students deal with anger and other issues that they 40.

bring to school51

and school-related impacts of abuse, neglect and trauma.52

The role of these

counselors is not to substitute for other professionals who provide counseling outside of school,

but to specifically address the barriers to focusing in class.53

Social workers assist in making home to school connections.54

Supporting 41.

parents is part of the school‘s responsibility if schools are going to prepare students to be

48 Roberts, v.6, 763:3-25; 765:12-25; 766:1-25; 771:10-24. also see Ex. 5343.

49 Roberts, v.6, 788:3-13; Roy, v.9, 1287:25-1288:12; Cook, v.13, 1891:10-14; 1896:6-1898:3;

1929:14-24.

50 Ex. 1976, at 58806. See also section on turnaround schools.

51 Vitti, v.6, 742:16-23; Roberts, v.6, 788:14-16; Marks, v.7, 1072:4-1073:6; Roy, v.9, 1291:9-

24; Cook, v.13, 1893:21-1894:11; Romano, v.13, 2013:16-24.

52 Roberts, v.6, 770:12-20; Cook, v.13, 1890:9-22.

53 Robinson, v.22, 3235:19-21.

54 Roberts, v.6, 771:10-772:18; 787:15-788:2; Vitti, v.6, 742:16-23, 771:10; Littleton, v.7,

984:23; Roy, v.9, 1288:21-1289:11; Cook, v.13, 1900:5-14; Robinson, v.22, 3234:16-3235:18,

13

productive citizens.55

Social workers can assist those children who are moved from relative to

relative and do not have someone equipped to help with a student‘s education.56

Guidance counselors should assist with academic goal setting57

and be career 42.

counselors for graduation.58

Guidance counselors at times are required to focus on testing and

proctoring.59

Academic coaches assist teachers of low performing students and interventionists 43.

assist the students in remediation.60

Class aides or paraprofessionals enable teachers to provide small group or 44.

individualized instruction.61

Nurses are needed to attend to a myriad of medical issues.62

45.

Tutors provide individualized homework help.63

46.

Media specialists help students in computer labs. They also are needed after 47.

school for students who need to take online courses but do not have computers at home.64

55 Roberts, v.6, 771:19-773:5.

56 Roy, v.9, 1256:3-15.

57 Roberts, v.6, 788:25-789:25; Roy, v.9, 1287:13-15.

58 Marks, v.7, 1076:9-23.

59 Cook, v.13, 1915:10-18; Guerrieri, v.20, 2991:1-12.

60 Vitti, v.5, 632:22-633:5, v.6, 742:5-15; 790:16-791:17; Marks, v.7, 1073:7-21; Roy, v.9,

1288:13-20.

61 Roberts, v.6, 790:1-15; Roy, v.9, 1287:20-24; Cook, v.13, 1898:9-1899:25.

62 Vitti, v.6, 742:16-23: Littleton, v.7, 984:23-985:11.

63 Marks, v.7, 1074:7-16.

64 Boyd, v.16, 2425:9-17; 2465:16-23.

14

B. Instructional Time

School district witnesses agree that smaller class sizes, small group instruction, 48.

and individualized instruction are vital for providing the intensive instruction that is necessary

for students who are under-performing.65

Schools on the State‘s 300 Lowest Performing List benefit from an extra hour, but 49.

there are low performing students who would benefit who are not at a school on the list.66

Sufficient instructional time, extended day (before and after school) and extended school year

(summer) are strategies that would benefit low performing students.67

Summer programs are

important for children in poverty because they tend to regress even if they made progress during

the school year.68

Teachers need time and professional development to learn new standards.69

50.

Understandably, teachers complain that constant changes to standards impede their ability to

learn and teach the new standards.70

65 Roberts, v.6, 773:23-774:6, 786:23-787:11, 790:1-15; Marks, v.7, 1059:11-24; Vitti, v.5,

597:13-20, 632:22-633:5, v.6, 742:5-15; Robinson, v.22, 3241:21-3242:14, Cook, v.13, 1899:2-

25, 1903:21-1904:23; Guerrieri, v.20, 3010:21-3011:8; Flynt, v.21, 3151:3-7; Yariv, v.18,

2726:16-2727:25.

66 Roy, v.9, 1280:15-1281:9; Roberts, v.6, 796:25-797:9.

67 Rebell, v.2, 105:1-7; Vitti, v.6, 742:5-15; Roy, v.9, 1284:20-24; Cook, v.13, 1892:9-14; Boyd,

v.16, 2455:9-25; Roberts, v.6, 780:13-781:22, 815:7-11; Marks, v.7, 1060:14-1061:3; Robinson,

v.22, 3234:16-20.

68 Hanushek, v.28, 4294:23-4295:5.

69 Roberts, v.6, 775:3-776:11, 816:8-817:22, 879:22-880:10; Roy, v.9, 1284:24-1285:2;

Robinson, v.22, 3234:16-23.

70 Roy, v.9, 1278:22-1280:3.

15

C. Resources Are Necessary to Provide a High Quality Education

Clearly, some amount of resources are necessary for school districts to fulfill their

constitutional duty to operate a high quality system of public education. Time costs money.71

People cost money.72

The education of Florida‘s children is very important.

Findings Related to Florida’s K–12 Education Policies and Programs III.

Plaintiffs‘ challenges to various aspects of Florida‘s assessment and 51.

accountability system are many. Florida has been a national leader in educational reform.

Florida was early in the assignment of ―A‖–―F‖ letter grades to schools as part of its

accountability system and these policies have spread throughout the nation.73

Federal law and

policies now require all states to adopt state content standards and assess their students annually

in English language arts and mathematics in all grades between 3 and 8 and once in high

school.74

The No Child Left Behind Act (―NCLB‖) also required that students be assessed in

science at least once in elementary, once in middle, and once in high school.75

The federal Race

to the Top program focused on moving to more rigorous college and career ready standards,

assessment, school improvement, and linking student performance and growth to teacher

evaluations.76

High standards, assessment, and accountability have been a nationwide

movement, not policies unique to Florida, although Florida was a leader in adopting such

71 Roy, v.9, 1285:12-17.

72 Roberts, v.6, 791:18-793:4; Marks, v.8, 1076:24-1077:1; Yariv, v.18, 2723:18-2724:9;

Hanushek, v.28, 4282:19-25; Vitti, v.5, 597:21-598:8.

73 Tr. Vol. 37 at 5580:13–5582:6 (Dep. Test. of F. Brogan); Ex. 3505.

74 20 U.S.C. § 6311(b)(1), (b)(3)(B)(vii); Tr. Vol. 26 at 3978:22–3979:9 (Test. of P. Stewart); Tr.

Vol. 29 at 4329:2–25 (Test. of J. Copa).

75 20 U.S.C. § 6311(b)(3)(B)(v)(II).

76 Exs. 1413, 3782, 3366, 3781, 3774.

16

policies.77

(The improvements in student achievement in Florida provide additional support for

the reasonableness of Florida‘s education policies, including its assessment and accountability

system.)

Florida requires more testing than federal law requires. In December 2015, the 52.

Every Student Succeeds Act (ESSA) modified the testing standards for students. ESSA required,

―Each State plan shall demonstrate that the State educational agency, in consultation with local

educational agencies, has implemented a set of high-quality student academic assessments in

mathematics, reading or language arts, and science. The State retains the right to implement such

assessments in any other subject chosen by the State. S-1177-2, Sec. 1111(b)(2)(A).

Assessments are required for mathematics and reading or language arts, and that they are

administered in each of grades 3 through 8, and at least once in grades 9 through 12. In the case

of science, is to be administered not less than one time during grades 3 through 5, grades 6

through 9; and grades 10 through 12. Id. at (b)(2)(v)(I). For any other subject chosen by the

State, the assessment will be administered at the discretion of the State. Id. at (b)(2)(v)(III).78

Content Standards A.

The Florida Legislature and the State Board of Education have provided specific 53.

substantive content to the term ―education‖ in Article IX of the Florida Constitution by

specifying the ―core content knowledge and skills that K-12 public school students are expected

to acquire.‖ The Legislature directs that the standards ―must be rigorous and relevant‖ and

―[c]urricular content for all subjects must integrate critical-thinking, problem-solving, and

workforce-literacy skills; communication, reading, and writing skills; mathematics skills;

77 Tr. Vol. 37 at 5580:13–5582:6 (Dep. Test. of F. Brogan); Tr. Vol. 26 at 3978:22–3979:9 (Test.

of P. Stewart); Tr. Vol. 29 at 4329:2–25 (Test. of J. Copa).

78 Stewart, v.26, 4085:18-4086:3.

17

collaboration skills; contextual and applied-learning skills; technology-literacy skills;

information and media-literacy skills; and civic-engagement skills.‖ The State Board of

Education adopted the content standards consistent with this direction.79

The Commissioner of Education explained that the importance of having content 54.

standards is that the State has a standard by which it can measure whether or not education is

appropriate, whether the education that is occurring is standard across the state, and how students

are performing.80

Content standards define what children should be taught at each grade level for 55.

each subject area and what children should know and understand by the end of the year.81

The purpose and importance of uniform statewide standards is to ensure all 56.

students are being taught the same content (due to consistent standards and course instruction)

and to measure whether children are learning or not through the accountability system.82

Florida has been a leading state in the development and implementation of 57.

standards for all students. Florida was an early implementer of standards-based education, which

has since become a national movement and part of federal law and policy. As detailed below,

Florida‘s standards are , research-based and provide equitable access to rigorous content to all

students, including low-income students, minority students, students with disabilities, and

English language learners (―ELLs‖).83

79 § 1003.41(1), Fla. Stat. (2015); see also Fla. Admin. Code Rule 6A-1.09401; Stewart, v.26,

3958:16-3959:12; Ex. 3343-2.

80 Stewart, v.26, 3969:6-13; Brogan, v.37, 5507:20-5508:21.

81 Vitti, v.5, 653:20-654:10.

82 Tappen, v.30, 4622:5-19.

83 Tr. Vol. 26 at 3960:4–7 (Test. of P. Stewart); Tr. Vol. 30 at 4621:19–4623:1 (Test. of M.

Tappen); Tr. Vol. 37 at 5541:2–5543:12 (Dep. Test. of F. Brogan).

18

Standards are the center of an accountability system. They define what students 58.

should know and be able to do in each content area and at each grade level. Standards describe

the ―what‖ that students need to learn (e.g., ―Tell and write time to the nearest minute and

measure time intervals in minutes.‖), but standards do not define ―how‖ a teacher must instruct

to teach the standard or what materials (―curriculum‖) must be used.84

Florida law requires the

State Board of Education to establish the standards that specify the core content, knowledge, and

skills that K–12 public school students are expected to acquire, and each local school board is

required to provide the courses, the instruction, and the curriculum for students to master these

standards.85

Florida‘s standards encompass not only the core subject areas of science, social 59.

studies, mathematics, and English language arts, but also visual and performing arts, physical

and health education, and foreign languages, as well as career and technical education.86

Moreover, high-school graduates must earn credits in science, social studies, mathematics, and

English language arts, as well as in fine or performing arts, speech and debate, or practical arts;

physical education; and eight credits in electives as offered by the school district.87

Florida‘s

implementation of an accountability system has not resulted in a ―narrow[ing of] the curriculum‖

as alleged by Plaintiffs88

—there are over 13,500 courses offered to Florida students, including

college-level and other advanced courses, career and technical courses, STEM courses, and

84 Tr. Vol. 22 at 3338:25–3339:9 (Test. of M. Tappen); Exs. 3342, 3343, 3344, 3345, 3362,

1802, 1803, 1804.

85 §§ 1003.41, 1003.42, Fla. Stat.; Tr. Vol. 26 at 3973:7–21 (Test. of P. Stewart); Exs. 3342,

3343, 3343-2, 3344, 3345, 3362, 1802, 1803, 1804.

86 § 1003.41, Fla. Stat; Exs. 3342, 3343.

87 § 1003.4282(3), Fla. Stat.

88 2d Am. Compl. ¶ 116.

19

many electives ranging from dance and theater to world languages.89

All school districts provide

the courses required by Florida law and for students to receive a high-school diploma.90

Each district school board is required to ―provide all courses required for middle 60.

grades promotion, high school graduation, and appropriate instruction designed to ensure that

students meet State Board of Education adopted standards in the following subject areas: reading

and other language arts, mathematics, science, social studies, foreign languages, health and

physical education, and the arts.‖ § 1003.42(1), Fla. Stat. (2015).

Federal law requires that states apply the same challenging academic content and 61.

achievement standards to all students, including students with disabilities, and also that each

State adopt English language acquisition standards for ELLs.91

For Florida students with

significant cognitive disabilities, experts in exceptional student education draft ―access points‖

aligned to the state standards that are reviewed and then also approved and adopted by the State

Board. Districts hire teachers to teach the access points to these students.92

For Florida‘s ELLs,

the State adopts English language acquisition standards, aligned to the State Board-adopted

English language arts standards. This ensures that ELLs attain English proficiency and meet the

same content area standards that all students are expected to meet.93

There is a lengthy process that the Department of Education engages in associated 62.

with establishing standards that includes convening content experts and drafting the standards.

89 Tr. Vol. 31 at 4677:1–4682:6 (Test. of M. Tappen); Ex. 3380.


91 20 U.S.C. § 3611(b)(1); Tr. Vol. 31 at 4655:2–4656.17, 4659:19–4660:11, 4668:3–25 (Test. of

M. Tappen).

92 Tr. Vol. 20 at 2980:2–22 (Test. of C. Guerrieri); Exs. 3343-2, 3393, 3395.

93 Tr. Vol. 31 at 4655:2–4656:17, 4659:19–4660:11, 4665:6–4665:22 (Test. of M. Tappen).

20

The State Board of Education then goes through the rulemaking process which includes a public

notice and comments period.94

Florida began the development of its first set of ―Sunshine State Standards‖ in 63.

1991 as part of the Education Reform and Accountability Act: Blueprint 2000.95

Under the

leadership of Education Commissioner Frank Brogan, the first set of standards, the Sunshine

State Standards grades K–12, were adopted in seven content areas (language arts, mathematics,

science, social studies, foreign languages, the arts, and health & physical education) in 1996.96

This first set of Florida content standards were developed by teachers from around the state who

were brought together to identify the content to be taught at each grade level or for each high

school course.97

Professional development and technical assistance specific to implementation

of the Sunshine State Standards was provided to district content-area leaders by the Florida

Department of Education, six regional Area Centers for Educational Enhancement and state

university staff.98

The Next Generation Sunshine State Standards (―NGSSS‖) were adopted in 2007 64.

and 2008, depending on content area (in same 7 subjects as the Sunshine State Standards). The

purpose of changing was that the Sunshine State Standards were ―a mile wide and an inch deep‖.

They were also not internationally benchmarked, but based on what Florida educators thought

94 Stewart, v.26, 3958:16-3959:11.

95 Ex. 3520; Tr. Vol. 22 at 3324:9–3326:4 (Test. of M. Tappen).

96 Exs. 3345, 5344; Tr. Vol. 37 at 5541:2–5543:12 (Dep. Test. of F. Brogan).

97 Tr. Vol. 26 at 3959:19–3960.3 (Test. of P. Stewart); Tr. Vol. 30 at 4617:20–4618:3 (Test. of

M. Tappen); Tr. Vol. 37 at 5541:2–5543:12 (Dep. Test. of F. Brogan).

98 Tr. Vol. 30 at 4579:17–4584:24 (Test. of M. Tappen).

21

should be taught. The new standards were shifted to have fewer standards at each grade level,

but with more depth.99

NGSSS were instrumental in development of the Common Core standards and 65.

depending on the grade level, up to 85% of the NGSS were used in the Common Core

Standards.100

In 2010, the State Board of Education adopted the Common Core standards. The 66.

Board developed a timeline for implementation, and it was to be phased in starting with

kindergarten and then it moved up each year until they were to have it as a blended model of

NGSSS and Common Core in all of the grades.101

Due to public criticism of the Common Core standards, the State reviewed public 67.

input and convened a panel of experts to make some changes to the Common Core standards and

in February 2014, the State Board adopted the Florida Standards.102

One of the primary differences between NGSS and Common Core, and then the 68.

Florida Standards, was higher order thinking. In the past, students would read a passage and

would be asked the question ―What color was Sara‘s dress?‖ And in the Common Core (and

now the Florida Standards), students would read the same passage but they would be asked,

―Why, on this particular day, did Sara choose to wear a yellow dress?‖103

The development of the NGSSS, Common Core, and now the Florida Standards 69.

was done by internationally benchmarking what the top content in the top-performing nations

99 Stewart, v.26, 3960:10-3961:5; Tappen, v.30, 4617:5-4618:3.

100 Stewart, v.26, 3962:24-3963:13.

101 Stewart, v.26, 3961:10-3962:14.

102 Stewart, v.26, 3962:1-14.

103 Stewart, v.26, 3963:19-3964:5.

22

are, and then identifying what should be in the standards. The purpose of this was to raise the

bar for the content standards to address the fact that the United States had fallen behind other

nations in the world regarding student performance.104

The NGSSS for all content areas other than English Language Arts and Math 70.

have remained in place since 2009.

When standards change, it is important to ensure there is a period of time for 71.

professional development prior to full implementation of the standards. The State works to

develop professional development tools. Because of the size of the State, the Department

typically uses a ―train-the trainer‖ model or identifies a district lead.105

Beginning in 2007, in line with research indicating, among other things, that other 72.

countries were outperforming the U.S. on international assessments and that top-performing

countries have higher standards and fewer standards per grade level, Florida began development

of a new set of more rigorous state content standards, the ―Next Generation Sunshine State

Standards.‖106

The Florida Legislature adopted a comprehensive standards-development process 73.

to include the following: research on other states‘ and nations‘ standards, particularly those

considered to be exceptionally rigorous and to result in high student achievement; a process by

which renowned experts in the content area advised the state on the process and reviewed the

product; writers to include postsecondary content experts, experts in the field and educators; and

104 Tappen, v.30, 4617:5-19., 4618:20-4619:3.

105 Tappen, v.30, 4604:18-20, 4608:24-4610:24.

106 Exs. 3346, 5344; Tr. Vol. 22 at 3326:13–23, 3342:21–3343:25 (Test. of M. Tappen); Tr. Vol.

26 at 3960:9–3961:2 (Test. of P. Stewart); Tr. Vol. 30 at 4617:5–19 (Test. of M. Tappen).

23

review and comment from educators at all levels, leaders in business and industry, and the

public.107

The Next Generation Sunshine State Standards in English language arts and 74.

mathematics, adopted in 2010, incorporated the nationally developed Common Core State

Standards and were rated as ―too close to call‖ when compared with the rigor of Common Core

State Standards.108

In 2014, Governor Rick Scott requested a public and expert review of the English 75.

language arts and mathematics standards, which incorporated the Common Core State

Standards.109

Four public hearings took place and a web-based review system was provided for

public comment. Based on the comments collected at the hearings, provided in emails and

provided in the web-based review system, experts in the content areas made recommendations to

strengthen the standards. Prior to formal adoption by the State Board of Education in February

2014, an additional public hearing took place to provide the public an opportunity to review the

ninety-nine improvements to the standards.110

These standards were referred to as the ―Florida

Standards‖ in English language arts and mathematics.111

In addition to the implementation of a more rigorous standards-development 76.

process, in 2009, the Florida Department of Education aligned other requirements of the K–12

system.112

When new standards are adopted, course descriptions that include the new standards

107 § 1003.41, Fla. Stat.; Tr. Vol. 30 at 4606:4–4611:12 (Test. of M. Tappen); Ex. 3346.

108 Exs. 3344, 5344; Tr. Vol. 22 at 3345:19–3346:12 (Test. of M. Tappen).

109 Tr. Vol. 26 at 3962:1–23 (Test. of P. Stewart); Tr. Vol. 22 at 3347:3–20 (Test. of M. Tappen).

110 Tr. Vol. 26 at 3962:1–23 (Test. of P. Stewart); Tr. Vol. 22 at 3347:3–20 (Test. of M. Tappen).

111 Exs. 3342, 3343.

112 Tr. Vol. 30 at 4606.4–4611.12 (Test. of M. Tappen); Ex. 3346.

24

must be approved the year prior to the year teachers are required to teach from those course

descriptions.113

Teacher certification exams also must be reviewed and revised to reflect the

needs of teacher preparation and expectations to teach the new more rigorous content.114

Florida‘s statewide instructional materials schedule was revised so that state funding dedicated to

instructional materials would match the year the school districts are required to implement new

standards.115

In addition, the Department increased available professional development directly 77.

related to implementation of the standards.116

As much as possible, Department staff provided

support upon request to local school districts, although districts are not required to participate in

professional development opportunities offered by the State.117

All school districts were

provided services by the Just Read, Florida! Office, with over half the districts being visited

more than once by staff members to support implementation of research-based reading

instruction.118

With the implementation of the new more rigorous standards in 2010, the

Department provided summer professional development to all districts and all schools in the

state.119

Professional development activities were offered the summers of 2011, 2012, and 2013,

and school districts applied for additional Race to the Top funds to supplement their professional

113 § 1003.42., Fla. Stat.

114 § 1012.56(4), Fla. Stat.

115 Tr. Vol. 30 at 4604:2–17 (Test. of M. Tappen); Exs. 3346, 3477.

116 Tr. Vol. 30 at 4604:18–4605:2, 4608:24–4609:24 (Test. of M. Tappen); Tr. Vol. 32 at

4785:22–4786:1 (Test. of K. Hebda).

117 Tr. Vol. 30 at 4604:18–4605:2, 4608:24–4609:24, 4619:10–4621:18 (Test. of M. Tappen); Tr.

Vol. 32 at 4783:7–4785:21 (Test. of K. Hebda).

118 Ex. 3400; see § 1001.215, Fla. Stat.; Tr. Vol. 32 at 4785:2–10 (Test. of K. Hebda).


25

development programs in the summer of 2014.120

All of these activities took place prior to full

implementation of the new standards and aligned assessment.121

After standards are adopted, the Department of Education builds course 78.

descriptions. In Florida, there is an instructional materials adoption process and the State works

to match the timing of the new materials with the cycle for instructional materials (there is an

appropriation annually by the Legislature to purchase instructional materials on a cycle because

districts do not buy all new materials annually).122

Florida also assures that districts have access to instructional materials aligned to 79.

the standards.123

Florida has had an instructional materials review process for over 30 years.124

Under the current process, materials to teach a content area with new standards are reviewed and

then placed on a State list of adopted materials the year prior to the school districts‘ requirement

to teach the standards.125

Districts are authorized to create their own process for approval of

materials, but Florida law requires that the instructional materials be aligned to the standards,

either through a State process or a local school district process.126

Arts, Music and PE Instruction

The Department of Education interprets Fla. Stat. § 1003.42 to mean that subjects 80.

listed in the statute such as art, music, and PE are not required to be taught (unless required for

120 Id.

121 Id.

122 Tappen, v.30, 4603:19-4604:17, 4606:19-4607:5.

123 Tr. Vol. 30 at 4607:14–22 (Test. of M. Tappen).

124 §§ 1006.28–.31, Fla. Stat.; Tr. Vol. 30 at 4607:23–4608:23 (Test. of M. Tappen).


126 § 1006.283, Fla. Stat.

26

middle grades promotion or high school graduation), but when a school district chooses to teach

them, they are required to teach to the standards.127

There are specific requirements for physical education set forth in Fla. Stat. § 81.

1003.455.

Florida has standards in each grade for dance, health education, music, physical 82.

education, theater, and visual arts. These standards ―specify the core content knowledge and

skills that K-12 public school students are expected to acquire.‖ The Legislature specifically set

out requirements for content standards in these areas as follows:

Visual and performing arts, physical education, health, and foreign

language standards must establish specific curricular content and

include distinct grade level expectations for the core content

knowledge and skills that a student is expected to have acquired by

each individual grade level from kindergarten through grade 5. The

standards for grades 6 through 12 may be organized by grade

clusters of more than one grade level.128

The Florida Legislature requires that the Commissioner of Education prepare an 83.

annual report that includes a description of student access to and participation in fine arts courses

(visual arts, music, dance, and theatre), including information about facilities and certifications

of educators providing instruction. The Commissioner is also required to report the manner in

which schools are providing ―the core curricular content for fine arts established in the Next

Generation Sunshine State Standards.‖129

Even though the State has established content standards for arts education, there 84.

are disparities in how arts education is provided by local districts across the State. As discussed

127 Stewart, v.26, 3973:7-3974:18, 4082:1-4085:13.

128 Stewart, v.26, 4083:20-24; Roberts, v.6, 926:7-9; § 1003.41(1) & (2)(e), Fla. Stat. (2015).

129 § 1003.4995, Fla. Stat. (2015).

27

below, due to funding issues, some school districts raise private grants or money through voter-

approved referenda to levy additional property millages to fund arts programs. Other districts do

not fund arts and music in all of their schools.

The Duval School District found that, because of the emphasis on standardized 85.

testing, funding for arts and music has declined as a focus for school districts including Duval.

As part of a new ―Develop the Whole Child‖ initiative, Duval funded a music and art teacher at

every elementary school. The District rebuilt an art and/or music program at each of the middle

schools. The ―Develop the Whole Child‖ initiative recognizes that the school experience in child

development goes beyond standardized testing and often, if provided, students will do better as

far as standardized tests are concerned with additional supports in place.130

Other school districts do not have the financial resources for arts education, 86.

particularly at the elementary school level. In Franklin School District, to address critical

financial issues, the district discontinued elementary art.131

Hernando School District is not able

to offer arts and music in all of the schools.132

Some school districts have levied additional funds through voter-approved 87.

referenda specifically to fund arts and music: Alachua, Marion, Orange, Palm Beach, and

Pinellas. Three school districts tried to pass a voter referendum to raise money to pay for arts

and music instruction, but the referenda failed (Flagler, Lafayette, and Volusia).133

130 Vitti, v.5, 630:12-631:14, 690:21-691:7.

131 Marks, v.7, 1052:5-14, 1054:12-20.

132 Romano, v.13, 1995:16-25, 2016:22-2017:19.

133 Ex. 1204, at 29062-65, 29068, 29430-33, 29524-25, 29532-39, 29567-68, 29206-07, 29385-

92, 29731-33.

28

Alachua School District levied the 1 mill for art, music, PE, magnet programs, 88.

and technology. Prior to the referendum passing, the district had cut back these programs

drastically and would have phased them out the following year had the referendum not passed.134

Palm Beach School District also uses its voter approved millage to fund arts, 89.

music, and PE in all of the elementary schools. The millage also supports its choice programs

(formerly known as magnet schools) which includes two elementary schools of the arts, a middle

school of the arts, and a high school of the arts. The high school of the arts has a private

foundation, and in the past year had more than $1 million pass through the internal school

operating budget that was not funded by the district.135

Sarasota School District, which funds its art, music and drama programs through 90.

funds generated by a voter-approved millage, is nationally recognized for the quality of their

visual and performing arts programs. The Kennedy Center for Performing Arts has recognized

Sarasota‘s arts education as one of the best in America.136

Impact of Changing Standards

In a Florida Association of District School Superintendents (―FADSS‖) letter to 91.

Commissioner Stewart in February 2015 about the upcoming FSA administration, FADSS

specifically raised concerns about the changing standards, noting that since 2011, school districts

have implemented three different sets of education standards: (1) Next Generation Sunshine

State Standards, (2) Common Core Standards, and (3) the recently adopted Florida Standards.

134 Roy, v.9, 1260:17-1261:3, 1262:8-13, 1266:13-1267:1; Boyd, v.16, 2430:18-2433:8; McGriff,

v.20, 2941:1-14, 2941:24-2942:6.

135 Robinson, v.22, 3221:13-3223:17.

136 Weidner, v.25, 3775:3-3776:17; Ex. 1129.

29

FADSS expressed that it had repeatedly voiced concerns that teachers did not have enough time

to teach the standards being assessed in 2015. FADSS stated that:

Full implementation of the standards throughout all grades requires

a multi-year effort of intense teacher professional development,

coupled with the adoption of curriculum and instructional materials

that are accurately aligned with the new state standards. The lack

of a systematic and realistic timeline for all grades to fully

implement the Florida State Standards has been a source of the

conflict and struggle faced by teachers today. These standards are

not the same as the former standards. The previous standards

emphasized the ―what‖ and not the ―why.‖ The new standards

require a whole new way of delivering instruction. Teachers have

not had adequate time or professional development to ensure

student‘s success.137

Changing standards is difficult for a school district to fully implement. The 92.

process includes aligning the new standards with curriculum materials and with teacher training,

and preparing students to ensure they are successful on new assessments. Former Alachua

Superintendent Boyd testified that having four sets of standards over the past 15 years is ―like

turning a battleship with a paddle. Trying to get things moved in another direction when you‘ve

got your resources lined up, your teacher staff development moving in one direction, and then

you have to stop and do something else.‖138

As it relates to changing standards, the most important thing that districts, schools 93.

and students need is time. The teachers need time to learn the standards and how to teach the

standards to the students with new curriculum that is aligned to the new standards. With the

implementation of the Florida Standards, teachers did not have adequate preparation for

professional development to be able to teach the standards. Before students can be expected to

137 Ex. 1876; Roberts, v.6, 814:3-815:18.

138 Boyd, v.16, 2433:21-2435:20, 2436:15-20; see also Littleton, v.7, 945:14-947:18.

30

master the content of the standards, the teachers have to master the standards to a degree of depth

that allows them to teach effectively. Because the standards are more rigorous, teachers need

time to build their expertise so they are ready to deliver the curriculum at the depth and scope

required; otherwise, the students will not benefit from the instruction.139

Alachua Superintendent Owen Roberts described the challenges with failing to 94.

give teachers enough time to learn the new standards before teaching them as ―asking them to

ride a bicycle while they‘re building it. And, basically, that never works because the kids are the

ones who suffer as a result of that.‖140

The students who are primarily affected are the ones in poverty because they do 95.

not have the same support systems in place. Other children will be able to adapt more easily to

the challenges and not be as impacted by the changes.141

The changes in the standards, particularly by increasing the rigor of the standards, 96.

impacts struggling learners. Students who previously received a Level 1 or Level 2 all have to

take the new assessment. They were already struggling, and need more support to ensure that

they do not fall farther behind when the bar is raised and the curriculum and assessments become

more challenging. Bay School Board Member Ginger Littleton described the challenge this way,

―If you‘ve got a journey of 5 miles, you do it one way. If you do a journey of 500 miles, you

prepare differently. So that‘s one of the issues. What we have seen is that the students who are

struggling have more and more difficulty. As they climb up that wall, clawing their way to the

139 Marks, v.7, 1061:24-1062:21; Roy, v.9, 1278:22-1290:3; Roberts, v.6, 816:8-818:15; Boyd,

v.16, 2442:2-23; Hiltz, v.23, 3536:4-3537:16; Thompson (Ella), v.15, 2243:10-2247:5, 2250:12-

23, 2256:3-8; Ex. 2013, at 59247.

140 Roberts, v.6, 775:3-776:11.

141 Roberts, v,6, 816:8-818:15.

31

grade level, it gets … when you make the wall thornier, it simply gets harder to get up the

wall.142

Raising proficiency benchmarks requires providing students with necessary 97.

supports to get them to achieve at those levels. Raising benchmarks and not doing anything

differently just means more children will fail.143

Not doing anything different is largely and

primarily a local School District responsibility.

Aligned Assessments and Accountability System B.

The Commissioner of Education is required to ―design and implement a statewide 98.

program of educational assessment that provides information for the improvement of the

operation and management of the public schools … in accordance with the requirements of

chapter 1008.‖ 144

The content standards adopted by the State Board of Education are the basis for 99.

the statewide assessments. The purpose of the assessments is to test the child‘s understanding of

content standards at the end of the year based on the grade level or subject area.145

Florida‘s statewide assessment and accountability system is research-based and 100.

the result of thorough consideration and stakeholder input, including from Florida educators. As

discussed below, not only are many aspects of the system required by federal law, but Florida‘s

early adoption of an assessment and accountability system was used to shape federal law and

national policy in this area. There is no persuasive evidence that Florida‘s assessment and

accountability system is arbitrary or capricious or in any way prevents students from obtaining a

142 Littleton, v.7, 947:19-24, 949:2-14; Vitti, v.5, 654:14-19, 655:24-656:10.

143 Tobin, v.2, 201:16-24.

144 § 1001.11(5), Fla. Stat. (2015); Stewart, v.26, 3966:25-3967:10.

145 Fla. Admin. Code R. 6A-1.09401; Vitti, v.5, 654:11-13; Tappen, v.30, 4610:12-20.

32

high-quality education; instead, it has been a key aspect of Florida‘s system of continuous

improvement, as detailed below.

Various state policies, discussed in this Section and throughout these findings, 101.

rely upon the use of statewide, standardized assessments. The purpose of an assessment aligned

to the content standards is to ensure that uniform standards are being taught across the state by

measuring how well students are mastering those standards, what progress has been made and

what additional progress needs to be made. The assessment is an extension of the instruction of

the standards, designed to ensure that students are mastering the content defined in the State‘s

content standards and to give the State and local school districts the necessary information to

determine if students have mastered the content and skills necessary for success at the next level

of education, into college and career.146

It is the opportunity for students to demonstrate what

they have learned, and for schools, districts, and teachers to ascertain how well they, as

instructional leaders, have provided students with the necessary instruction aligned to the

standards.147

The purpose of the performance accountability system is to ―assess the 102.

effectiveness‖ of Florida‘s education system by providing answers to the following questions

related to its mission and goals: ―(1) What is the public receiving in return for funds it invests in

education? (2) How effectively is Florida‘s K-20 education system educating its students? (3)

How effectively are the major delivery sectors promoting student achievement? (4) How are

individual schools and postsecondary education institutions performing their responsibility to

146 Ex. 1875 at 5–6; Tr. Vol. 26 at 3968:17–25 (Test. of P. Stewart); Tr. Vol. 29 at 4327:24–

4329:1 (Test. of J. Copa).

147 Id.

33

educate their students as measured by how students are performing and how much they are

learning?‖148

The accountability system is designed to be ―a single, unified system with 103.

multiple components including, but not limited to, student performance in public schools and

school and district grades.‖149

The accountability system is required to measure student progress towards the 104.

following goals:

a. Highest student achievement, as indicated by evidence of student learning

gains at all levels;

b. Seamless articulation and maximum access, as measured by evidence of

progression, readiness, and access by targeted groups of students

identified by the Commissioner of Education;

c. Skilled workforce and economic development, as measured by evidence of

employment and earnings;

d. Quality efficient services, as measured by evidence of return on

investment; and

e. Other goals as identified by law or rule.‖150

In order for an assessment to be a valid measure of student mastery or progress on 105.

those content standards, it must be aligned to those standards.151

148 § 1008.31(1)(a), Fla. Stat. (2015).

149 § 1008.31(1)(b), Fla. Stat. (2015).

150 § 1008.31(2)(c), Fla. Stat. (2015).

151 Copa, v.29, 4340:2-12.

34

The test changes along with the change in standards because the Department of 106.

Education has ―a moral, ethical and legal obligation to make sure that the assessment is aligned

to the standards.‖152

The Florida Standards Assessment (―FSA‖) was first administered in the Spring 107.

of 2015. That assessment is aligned to the Florida Standards. Prior to the FSA, there was the

FCAT 2.0. That test was aligned to the NGSSS. And prior to that was the FCAT, which was

aligned to the Sunshine State Standards.153

The state accountability system is one way to measure whether the State is 108.

allowing all students to obtain a high quality education. It is a State requirement that students

should perform adequately on the state assessments, which are used to determine school grades,

teacher evaluation, district performance, and student level decisions. Because the State has

designed the content standards, the scores for passing, and the assessments themselves to

measure how students are performing and how much they are learning, then these assessments

should be used to determine whether or not there is evidence that the State is providing a high

quality education.154

History of Statewide Assessments

With the goal of ensuring continuous improvement, Florida policymakers have 109.

reformed the criteria used to evaluate students and schools over time. 155

Raising standards and

152 Stewart, v.26, 3968:8-16.

153 Stewart, v.26, 3967:11-3968:7; Tappen, v.22, 3346:16-3347:2.

154 Roberts, v.6, 764:1-19.

155 Tr. Vol. 26 at 3984:11–3986:6 (Test. of P. Stewart); Tr. Vol. 29 at 4331:19–4338:23,

4388:14–4389:24 (Test. of J. Copa).

35

expectations for students and schools has resulted in improved performance of Florida‘s schools

and students.156

Although Florida has used statewide assessments since the 1970s, the current 110.

standards-based assessments began in 1998 with the Florida Comprehensive Assessment Test

(―FCAT‖).157

The FCAT was first administered in 1998 in reading (grades 4, 8 and 10) and

mathematics (grades 5, 8 and 10), and tested mastery of the Sunshine State Standards.158

FCAT

reading and mathematics assessments were expanded to grades 3–10 in 2001, which allowed for

the calculation of student learning gains from year to year.159

Florida‘s policy was a forerunner

of federal law, as the 2002 No Child Left Behind Act (―NCLB‖) required all states to annually

assess students in reading/language arts and mathematics in grades 3–8 and at least once in high

school.160

Florida introduced a science FCAT in 2003, also in compliance with NCLB.161

In 2011, after the transition to the Next Generation Sunshine State Standards, the 111.

state transitioned to FCAT 2.0, which was developed to assess student mastery of the new

156 Tr. Vol. 26 at 3986:7–18 (Test. of P. Stewart); Tr. Vol. 29 at 4444:14–4454:19 (Test. of J.

Copa); Tr. Vol. 35 at 5212:14–5213:6, 5270:13–5271:1 (Test. of J. Greene); Ex. 1813 at

DOE03179, DOE03181–87; Ex. 1875 at 9–11; Exs. 133, 134, 135, 136, 137, 138, 1807, 1808,

1809, 1810, 1811, 1812, 1829, 1830, 1831, 1832, 1833, 1834, 3186, 3187, 4050, 5292, 5328.

157 Ex. 5344; Ex. 1875 at 8; Ex. 4047 at 00122081–83; Tr. Vol. 29 at 4331:19–4338.23 (Test. of

J. Copa).

158 Ex. 5344; Ex. 1875 at 8; Ex. 4047at 00122081–83; Tr. Vol. 22 at 3341:14–3342:9, 3343:9–25

(Test. of M. Tappen); Tr. Vol. 29 at 4331:19–4338.23 (Test. of J. Copa); Tr. Vol. 26 at 3968:2–7

(Test. of P. Stewart).

159 Ex. 4047 at 00122081–83; Tr. Vol. 29 at 4331:19–4338.23 (Test. of J. Copa).

160 Id.; 20 U.S.C. § 6311 (b)(3)(B).

161 Id.

36

standards.162

At the same time, Florida also began implementing End-of-Course assessments

(―EOCs‖) to measure student mastery of content in select middle- and high-school courses.163

The Algebra I EOC began in 2011, with EOCs in Geometry and Biology added in 2012, U.S.

History in 2013, and Civics in 2014.164

In 2014–15, the state transitioned to the Florida Standards Assessment (―FSA‖), 112.

which was developed to assess mastery of the Florida Standards in grades 3–11 for English

language arts and grades 3–8 for mathematics, with EOCs for Algebra I, Algebra II, and

Geometry.165

With respect to the FSA, sample items were made available on the Department‘s

website almost one year before the administration of the test in the spring of 2015.166

Validity, Reliability and Development of Assessments

The statewide, standardized assessments in Florida have been developed, 113.

administered, scored and reported using industry-standard best practices in large-scale

assessment, meeting all professional standards of psychometric quality traditionally associated

with standardized achievement tests.167

Florida employs an inclusive process involving Florida

educators all along the way in areas such as content review, bias and sensitivity review, and

162 Exs. 5344, 4047 at 00122081–83; Tr. Vol. 29 at 4334:13–23 (Test. of J. Copa); Tr. Vol. 22 at

3346:16–3347:2 (Test. of M. Tappen); Tr. Vol. 26 at 3967:24–3968:1 (Test. of P. Stewart); Exs.

4047, 5344.

163 Exs. 5344, 4047 at 00122081–83; Tr. Vol. 29 at 4331:19–4338.23 (Test. of J. Copa).

164 Id.

165 Id.

166 Ex. 1813at DOE03195–200; Tr. Vol. 26 at 4035:6–4039:5 (Test. of P. Stewart).

167 Tr. Vol. 29 at 4340:13–4349:17 (Test. of J. Copa); Exs 112, 113, 1819 at 00052222–25.

37

performance standard setting.168

This inclusive process of involvement substantiates the content

validity of the assessments.169

Plaintiffs have not presented persuasive evidence that Florida‘s statewide 114.

assessments are invalid or unreliable. Indeed, psychometric analyses of Florida‘s statewide,

standardized assessments, including the FCAT, FCAT 2.0, and FSA, have consistently

demonstrated that the assessments are reliable. Third-party reports from the American Institutes

for Research (―AIR‖) and Alpine Testing Solutions, Inc., have concluded that these assessments

are technically sound and meet or exceed professional standards for standardized achievement

tests.170

In an effort to assure content validity of the assessments, the Florida Department 115.

of Education has implemented the following steps for items included on its assessments:

a. educators and citizens judge the standards and skills acceptable;

b. item specifications are written;

c. test items are written according to the guidelines provided by the item

specification;

d. the items are pilot tested using randomly selected groups of students at

appropriate grade levels;

e. all items are reviewed for cultural, ethnic, language, and gender bias and

for issues of general concern to Florida citizens;

f. instructional specialists and practicing teachers review the items;

g. the items are field tested to determine their psychometric properties;

168 Id.

169 Id.

170 Tr. Vol. 29 at 4347:17–4349:17 (Test. of J. Copa); Exs. 2152, 1819, 1820.

38

h. the tests are carefully constructed with items that met specific

psychometric standards; and

i. the constructed tests are equated to the base test to match both content

coverage and test statistics.171

The Department employs various committees of practicing Florida classroom 116.

teachers and curriculum staff to review test items and committees of educational leaders and

citizens to make recommendations.172

These committees are diverse in terms of ethnicity,

gender, geographic region, county size, and county type. For the FSA specifically, the

development of the first-year administration in 2014–15 relied upon a bank of items that were

field tested and then reviewed by Florida content experts to ensure that the items aligned to

Florida standards and were appropriate for Florida students. Work continued with the various

committees of Florida educators to develop assessment items aligned to the Florida Standards for

the 2015–16 and future administrations of the FSA.173

Once tests are administered, they are subject to a lengthy and rigorous scoring 117.

process. The scoring is performed by an outside test-scoring company, using the same process

used across the nation by states with large-scale testing programs. Before results are released,

student and school scores are reviewed for anomalous data that would indicate testing

irregularities.174

Although actual test items cannot be released because they may be used in

171 Tr. Vol. 29 at 4342:4–4347:9 (Test. of J. Copa); Ex. 1819 at 00052224– 42.

172 Tr. Vol. 29 at 4340:2–4347:9 (Test. of J. Copa); Exs. 112, 113, 1819 at 00052222–23.

173 Id.

174 Tr. Vol. 29 at 4356:18–4360:23 (Test. of J. Copa).

39

future years, sample test items are made public to provide students and parents with examples of

the type of questions on the statewide assessments. 175

Administration of Assessments

Florida began moving to computer-based testing in the 2010–11 school year.176

118.

Some assessments are administered by computer and some on paper, depending on the grade and

subject, with additional grade levels and subjects transitioning to computer-based testing each

year.177

For the 2014–15 FSA , each local school district submitted certifications, signed by the

district superintendent, certifying that the district was ready for computer-based administration of

the FSA.178

Plaintiffs‘ contention that students are spending ―too much time‖ testing is not 119.

supported by evidence. The Department sets large spans of dates (testing windows) in which

districts can locally manage the timing of test administration, in order to accommodate districts

with additional time to complete assessments for all students in the district, but these windows do

not indicate the amount of time individual students are actually sitting for tests.179

Plaintiffs have

not presented any evidence of the ―correct‖ amount of time that should be used for student

assessment. Moreover, local districts and schools, and the teachers they hire, are responsible for

175 Tr. Vol. 29 at 4350:22–4351:6 (Test. of J. Copa); Tr. Vol. 26 at 4036:8–14 (Test. of P.

Stewart); Ex. 1813 at DOE03196–96.

176 Tr. Vol. 26 at 4033:25–4034:3 (Test. of P .Stewart); Tr. Vol. 29 at 4355:13–4356:17 (Test. of

J. Copa); Ex. 5344.

177 Tr. Vol. 26 at 4033:25–4034:11 (Test. of P. Stewart); Ex. 5344.

178 Exs. 1716, 1851.

179 Tr. Vol. 29 at 4351:7–4355:3 (Test. of J. Copa); Exs. 114, 115, 116; Ex. 1875 at 00055511,

00055521–23; Ex. 5289.

40

allocating how much classroom time is spent on ―test preparation‖ activities and how staff and

facilities are utilized for the administration of the test during the testing window.180

Nevertheless, the Legislature and the Department have shown that the political 120.

process has been responsive to public concern about ―high-stakes testing.‖ In early 2015, the

Department conducted an investigation into the amount of testing in Florida schools, including

statewide assessments as well as district-, school-, and teacher-developed assessments.181

And

legislation was passed during the 2015 legislative session, and implemented by the Department,

that reduced that amount of assessment required and the impact of the assessments on various

aspects of the accountability system, including teacher evaluation.182

As detailed in the report of the Department‘s investigation, much testing in 121.

Florida‘s schools is determined and required locally by the district or school and not required by

the State.183

Performance-Level Standard Setting (Cut Scores)

Florida law provides for a rigorous and thorough public process for setting 122.

performance standards, with stakeholder input at multiple levels meant to ensure that

expectations are set at the appropriate level to gauge improvement.184

Because the statewide assessments are ―criterion-referenced,‖ rather than ―norm-123.

referenced‖ assessments, performance-level standard setting is an important process each time a

new test, new standards, or achievement-level descriptions change. Florida uses five

180 Id.

181 Ex. 1875.

182 Ch. 2015-6, Fla. Laws.

183 Ex. 1875 at 00055529–32.

184 Tr. Vol. 29 at 4356:18–4360:23 (Test. of J. Copa); Ex. 117; Ex. 4047 at 00122085–98.

41

achievement levels (Levels 1, 2, 3, 4, and 5) to categorize student performance on the statewide

assessments.185

The cut point between Levels 2 and 3 is used to determine ―satisfactory‖

mastery of the standards. Achieving a Level 2 on the FCAT 2.0, for example, indicates that a

student demonstrated ―a below satisfactory level of success with the challenging content of the

Next Generation Sunshine State Standards,‖ while a Level 1 demonstrates ―an inadequate level

of success with the challenging content of the Next Generation Sunshine State Standards.‖

Earning a Level 1 or 2 in reading on the Florida state assessment therefore is not an indication

that a student ―can‘t read‖ or is illiterate.186

Pursuant to § 1008.22, Fla. Stat., the Department has established a multi-step 124.

standard-setting process to recommend achievement levels for the assessments, with multiple

avenues for input and participation. This process occurs after students have sat for the first

administration of any new assessment. For each subject area, the process involves content

experts; an ―educator panel‖ of Florida educators nominated by their superintendents; a ―reactor

panel‖ of Florida education leaders, postsecondary faculty, and business/community leaders; and

public input workshops, all of which are considered by the Commissioner in making

recommended cut points.187

The recommendations are then presented to the Legislature for a 90-

day public review period, at the end of which the State Board of Education may make the final

decision to authorize the cut points.188

185 Tr. Vol. 29 at 4356:18–4360:23 (Test. of J. Copa); Ex. 4047 at 00122085–88.

186 Tr. Vol. 26 at 4054:21–4055:11 (Test. of P .Stewart); Tr. Vol. 29 at 4360:24–4361:21 (Test.

of J. Copa); Ex. 4047 at 0122088.

187 Tr. Vol. 29 at 4356:18–4360:23 (Test. of J. Copa); Ex. 117; Ex. 4047 at 00122089,

00122091–98.

188 Tr. Vol. 26 at 3979:10–3982:3 (Test. of P .Stewart); Tr. Vol. 29 at 4356:18–4360:23 (Test. of

J. Copa); Ex. 4047 at 00122098, 00122105.

42

The current FSA cut scores were set after the 2014–15 administration of the FSA, 125.

with approval of many district superintendents and other stakeholder groups.189

These cut scores

represent a policy choice about performance level standards. The State could have chosen to set

the scores so that more students would be performing at the satisfactory level, but Florida has

made a policy choice to have high performance standards, which have led to improvement over

time, even if the initial cut scores placed the majority of students below the satisfactory level.190

Use of Assessments in the Accountability System

As described above, various State policies rely on the use of statewide, 126.

standardized assessments. The impacts of the assessments on students, schools, districts, and

teachers are summarized below:191

a. Subject to a number of good-cause exemptions, a student must earn a Level 2

or above on the grade 3 English language arts (ELA) assessment to be

promoted to grade 4;192

b. A student must pass the grade 10 ELA assessment, or earn a concordant score

on the SAT or ACT, to graduate from high school;193

189 Tr. Vol. 29 at 4360:14–23 (Test. of J. Copa); Ex. 2158.

190 Tr. Vol. 26 at 3984:11–3986:18 (Test. of P. Stewart); Tr. Vol. 29 at 4331:19–4338:23,

4388:14–4389:24, 4444:14–4454:19 (Test. of J. Copa); Tr. Vol. 35 at 5212:14–5213:6, 5270:13–

5271:1 (Test. of J. Greene); Ex. 1813 at DOE03179, DOE03181–87; Ex. 1875 at 9–11;Ex. 4047

at 00122107–08.

191 Ex. 1875 at 00055518–19.

192 Tr. Vol. 27 at 4092:20–4093:7 (Test. of P. Stewart); Tr. Vol. 31 at 4633:8–4636:2 (Test. of

M. Tappen); Tr. Vol. 30 at 4481:4–4483:7 (Test. of J. Copa).

193 Tr. Vol. 26 at 3990:24–3991:3 (Test. of P. Stewart); Tr. Vol. 30 at 4481:4–4483:7 (Test. of J.

Copa).

43

c. A student must pass the Algebra I EOC, or earn a comparative score on the

Postsecondary Education Readiness Test (―PERT‖), to graduate from high

school;194

d. A student enrolled in a course with a statewide EOC must take the assessment,

and the results count as 30% of the student‘s course grade;195

e. A student who does not meet the specific levels of performance on the

assessment must be provided with additional diagnostic assessments and

remediation;196

f. The achievement and learning gains of students are used to determine school

grades, district grades, and school improvement ratings for alternative

schools;197

g. Schools identified as in need of improvement based on student performance

must provide progress monitoring and receive supports and intervention;198

and

h. For teachers teaching courses associated with the statewide assessment, the

results are used to measure student learning growth and included in the

―performance of students‖ portion of the teacher‘s evaluation.199


Copa).


196 Ex. 1875 at 00055519.

197 Ex. 1875 at 00055519

198 Ex. 1875 at 00055519; Tr. Vol. 30 at 4596:20–4597:15 (Test. of M. Tappen).

199 Ex. 1875 at 00055519.

44

School Grading and Accountability C.

Florida‘s statewide assessment results are used to implement Florida‘s 127.

accountability system, with the purpose of ensuring that the State, school districts, schools and

teachers are held accountable for improving student achievement. A primary aspect of

accountability is Florida‘s ―school grading‖ system, by which districts and schools receive an A–

F letter grade. The purpose of Florida‘s school grading system is to promote improvement in

student outcomes by communicating the performance of schools in a format consumable by the

public. Through the administration of assessments and the reporting of results through school

accountability, parents, the public and educators are able to identify the areas in which students

are excelling and the areas in which students are struggling.200

An examination of the history of the accountability system reveals that all of the 128.

changes made were rationally based on consideration of many factors, including the previous

results of the system, public input through the political process, and federal law. Indeed, the

history of the State‘s accountability system provides support for the policy of continuous

improvement, as student achievement has increased with the raising of standards and

expectations for students and schools.201

As early as 1995, Florida began identifying ―critically low performing schools,‖ 129.

based on the results of norm-referenced tests, the state writing assessment, and the High School

Competency Test.202

Identifying these schools resulted in a commitment to improving student

200 Tr. Vol. 37 at 5580:13–5582:6 (Dep. Test. of F. Brogan); Tr. Vol. 26 at 3978:22–3979:9

(Test. of P. Stewart); Tr. Vol. 29 at 4329:2–25, 4362:18–4363:7 (Test. of J. Copa).


202 Tr. Vol. 29 at 4363:12–4364:19 (Test. of J. Copa); Ex. 4047 at 00122081.

45

achievement for all schools and students, as the number of lowest-performing schools dropped

from 158 in the first year of the program to 4 in the fourth and final year of the program.203

School grades based on the statewide standards assessment, then the FCAT, were 130.

first issued in 1999, as part of the A+ Plan for Education.204

While this change to the

accountability system initially resulted in more schools earning a low grade (76 ―F‖ schools in

1999 versus 4 ―critically low performing‖ schools in 1998), the number of ―F‖ schools dropped

to zero by 2001.205

In 2001, the FCAT was first administered to all grades from 3–10, allowing the 131.

school-grades formula to incorporate student progress from year-to-year, known as ―learning

gains.‖206

The 2002 school grades were the first year in which half the school grade was based

on that year‘s student assessment scores and half on learning gains, focusing on the lowest-

performing students, not simply static performance in a given year.207

With this change to the

school grading formula, the number of schools earning an ―F‖ again increased in 2002, although

it again decreased over the following years.208

Additional changes were made in 2005 and 2007, including fully incorporating 132.

the learning gains of ELLs and students with disabilities into the school-grades calculation, with


204 Tr. Vol. 30 at 4573:12–22 (Test. of M. Tappen); Tr. Vol. 29 at 4363:12–4364:19 (Test. of J.

Copa); Ex. 4047 at 00122082.

205 Tr. Vol. 30 at 4584:19–23 (Test. of M. Tappen); Tr. Vol. 29 at 4386:24–4389:24 (Test. of J.

Copa); Exs. 1829, 1830.


207 Id.

208 Tr. Vol. 29 at 4386:24–4389:24 (Test. of J. Copa); Tr. Vol. 30 at 4584:24–4585:17 (Test. of

M. Tappen); Exs. 1829,1830.

46

the purpose of renewing the focus on these student populations.209

Again, the number of ―F‖

schools initially increased after each change but lowered in successive years.210

In 2010, high-school grade calculations were changed to include the high-school 133.

graduation rate as well as student participation and performance in accelerated coursework and

industry certifications.211

Florida‘s graduation rate has maintained a level of improvement over

the past several years as the school accountability system began to include the graduation rate as

a component to evaluate high school performance. With the incentive of measurement in place,

schools across the State have responded favorably, graduating more students, including minority

students.212

A confluence of events in the 2010–11 school year resulted in a number of 134.

changes to the school grading system.213

Not only had the State transitioned to the FCAT 2.0,

aligned with the Next Generation Sunshine State Standards, but in order to comply with federal

law, the state was required to include more students with disabilities and recently-arrived ELLs

in the student achievement (as opposed to the ―learning gain‖) component of its school-grades

calculation.214

In response to these changes, there was a groundswell of public support for

modification to the school grading system to mitigate the impacts. District superintendents


210 Tr. Vol. 29 at 4386:24–4389:24 (Test. of J. Copa); Exs. 1829, 1830.


212 Tr. Vol. 26 at 3991:19–3992:3 (Test. of P. Stewart); Exs. 5328, 5329.



47

widely supported various mitigation policies, most notably a ―hold harmless‖ policy whereby a

school‘s grade could not drop lower than one grade in a given year.215

Again in response to concerns about these changes and mitigation policies in the 135.

formula and the effect on schools and students, Governor Scott convened a summit in 2013,

resulting in an executive order seeking to ensure that the State‘s accountability system remains

fair and transparent.216

The Legislature subsequently revised § 1008.34, Fla. Stat., to return the

school-grading formula to its more transparent form, with the goal of it yielding more actionable

information to drive improved student outcomes.217

The changes to the school-grading formula, are understandable when considered 136.

in a full context. It is clear that the evolution of the formula was brought about by a variety of

complex factors—including the continuous improvement theory, the input of stakeholders and

district superintendents, and necessities of federal law—all of which led to reasoned decisions

made by Florida‘s educational policymakers with the goal of improving student performance.218

Retention and Promotion D.

Although Florida has implemented laws and regulations with regard to retention 137.

and promotion in limited areas, the vast majority of student requirements for promotion from one

grade level to the next are defined by local school districts in their student progression plans. 219

The only three state-level requirements for promotion are the following:

215 Tr. Vol. 29 at 4371:13–4374.2 (Test. of J. Copa); Tr. Vol. 26 at 4041:5–12 (Test. of P.

Stewart).

216 Tr. Vol. 29 at 4375:6–4378:4 (Test. of J. Copa); Ex. 4047 at 00122109–16.

217 Tr. Vol. 26 at 4051:20–4052:6 (Test. of P. Stewart); Ex. 1813 at DOE03204–06.

218 Tr. Vol. 29 at 4375:6–4378:4 (Test. of J. Copa); Ex. 4047.

219 § 1008.25(2), Fla. Stat.

48

a. Subject to a number of good-cause exemptions, promotion from 3rd grade

requires that students score a Level 2 or above on the state English language

arts assessment aligned to the 3rd grade standards;220

b. Promotion from middle grades requires students to successfully complete

three middle-grades or high-school courses in English language arts,

mathematics, social studies, science and one career and education planning

course;221

and

c. As explained in more detail in Section III.E, graduation from high school

requires students to pass a grade 10 English language arts assessment and an

Algebra I EOC or earn a concordant score on the ACT, SAT, or PERT, and

students must earn the minimum high school credit requirements.222

Districts have flexibility in implementing these requirements, in, for example, 138.

setting courses and curriculum to earn credit.223

Florida requires each school district to establish

a comprehensive plan for student progression that provides specific levels of performance for

each grade below which a student must receive remediation or be retained within an intensive

program that is different from the previous year‘s program and that takes into account the

student‘s learning style.224

The law also requires that, for students who do not obtain a Level 3

on the statewide, standardized reading or mathematics assessment, there must be a determination

of the nature of the student‘s difficulty, the areas of academic need, and strategies for providing


Tappen); Tr. Vol. 30 at 4481:4–4483:7 (Test. of J. Copa); § 1008.25(4), Fla. Stat.

221 § 1003.4156, Fla. Stat.

222 Tr. Vol. 26 at 3990:24–3991:3 (Test. of P. Stewart); § 1003.4282(3), Fla. Stat.

223 § 1003.42, Fla. Stat.

224 § 1008.25(2), Fla. Stat.

49

academic support to improve the student‘s performance.225

This statute was recently revised to

provide local school districts with more flexibility in addressing the needs of these students.226

Students scoring a Level 1 on the grade 3 reading assessment are not 139.

automatically retained in 3rd grade. Florida law outlines good cause exemptions that may be

provided to students to be promoted to 4th grade despite scoring a Level l on the statewide

assessment, including for students with disabilities; ELLs; and students who show, through

classroom-level portfolio assessments, that they can read at the level required by the standards.

Data indicate that less than half of all students who score a Level l on the 3rd grade reading

assessment are retained.227

Florida‘s third-grade reading policy is research-based and has been effective in 140.

improving student achievement.228

The policy is in place to ensure that Florida‘s most struggling

readers receive the additional support and intervention so that they are equipped to succeed in

their future schooling and beyond. It is not a punitive policy, but one that has served to be

beneficial, evidenced by Florida‘s improvement for over a decade.229

The third-grade retention policy goes hand-in-hand with other reading supports 141.

required by State policy. Any student who exhibits a substantial deficiency in reading in

kindergarten, grade 1, grade 2, or grade 3 must be given intensive reading instruction

immediately and continue to be provided such instruction until the reading deficiency is

225 § 1008.25(4), Fla. Stat.

226 Tr. Vol. 26 at 3973:7–21 (Test. of P. Stewart); Tr. Vol. 31 at 4630:3–4631:17, 4636:3–4637:2

(Test. of M. Tappen).

227 Tr. Vol. 31 at 4634:11–4636:2 (Test. of M. Tappen); Tr. Vol. 30 at 448622–23 (Test. of J.

Copa); Ex. 1836.

228 Tr. Vol. 35 at 5232:11–5235:19 (Test. of J. Greene); Exs. 270, 1835, 1836.

229 Tr. Vol. 31 at 4637:5–4638:14 (Test. of M. Tappen); Tr. Vol. 30 at 4487:1–4488:22 (Test. of

J. Copa); Tr. Vol. 35 at 5232:11–5235:19 (Test. of J. Greene); Exs. 270, 1835, 1836.

50

remediated.230

A 3rd grade student who is retained must be provided intensive interventions in

reading, including effective instructional strategies, participation in a summer reading camp, and

appropriate teaching methodologies.231

School districts must provide these students during the

school day with 90 minutes of uninterrupted, scientifically research-based reading instruction

that includes reduced teacher-student ratios and is taught by a ―highly effective‖ reading

teacher.232

The Legislature supports school districts with an annual reading appropriation that 142.

is provided once the school district submits a research-based district-wide reading plan to

support student performance in reading. The Department has a dedicated Just Read, Florida!

Office that provides technical assistance to districts as they implement their reading plans. The

Just Read, Florida! Office also provides professional development on the English language arts

standards and has adopted in rule the criteria for the 3rd grade student portfolios that can be used

to promote for good cause 3rd grade students who would otherwise be subject to retention based

on failing to score a Level 2 or higher on the statewide, standardized assessment in English

language arts.233

Students who fail to score a Level 2 are provided summer reading instruction

and have the opportunity to retake the assessment before being retained in the fall.234

Students retained in 3rd grade receive additional instruction to better prepare them 143.

for promotion to 4th grade, and success beyond that.235

Florida data show that struggling

230 § 1008.25(5)(a), (6)(b), Fla. Stat.

231 Tr. Vol. 31 at 4633:8–4636:2 (Test. of M. Tappen); Exs. 2003, 3400, 3401.

232 Tr. Vol. 31 at 4636:3–4637:2 (Test. of M. Tappen); § 1008.25(7)(b), Fla. Stat.

233 Exs. 3400, 3401; § 1001.215, Fla. Stat.



51

students afforded the extra year in 3rd grade outperformed their struggling counterparts who

were immediately promoted into 4th grade: Of students who scored a Level l in 3rd grade (i.e.,

were potentially subject to in-grade retention), students who were retained in 3rd grade

performed better on the grade 4 reading assessment in 4th grade than those who were promoted

directly from 3rd to 4th grade despite having scored a Level l in 3rd grade (i.e., were promoted

under a good cause exemption).236

Moreover, at least 70% of Florida‘s 4th graders have scored

at or above Basic on NAEP Reading since 2007.237

(See Section IV.A below for a detailed

discussion of Florida‘s NAEP performance.) These 4th grade samples of students have included

Florida‘s most struggling students who have benefitted greatly from an extra year of instruction

in 3rd grade.238

Florida‘s third-grade retention policy also is supported by academic research. Dr. 144.

Jay Greene, a professor of education and head of the Department of Education Reform at the

University of Arkansas, has extensively studied the effect of Florida‘s policy. Dr. Greene‘s

studies, which are published in a peer-reviewed journal, concluded that Florida‘s test-based

retention policy significantly improves the academic achievement of students who are

retained.239

Plaintiffs did not present any evidence countering Dr. Greene‘s findings.

At least a dozen other states have implemented a policy regarding the retention of 145.

third-grade students who do not meet grade-level reading requirements.240

This is further

236 Ex. 1835; Tr. Vol. 30 at 4487:1–4488:22 (Test. of J. Copa).

237 Ex. 1358.


239 Tr. Vol. 35 at 5232:11–5235:19 (Test. of J. Greene); Ex. 270.

240 Tr. Vol. 35 at 5234:2–4 (Test. of J. Greene).

52

evidence that Florida‘s policy of ensuring that students are reading on grade level before moving

on to grade 4 is rationally based on sound educational policy.

Graduation Requirements E.

Over the past twenty years, Florida legislation has increased high school 146.

graduation requirements for the purpose of ensuring all students are college and career ready

upon graduation.241

This increased rigor is supported by research on job growth and education

requirements in today‘s economy.242

Florida is a leader in emphasizing both the academic core

content requirements and improving its career and technical programs to ensure both result in

high school graduates prepared for college and careers.243

Florida‘s increased graduation requirements include required student credit in the 147.

core content areas of mathematics, science, social studies and English language arts and also

credits in the arts, physical education and a minimum of eight courses that can be dedicated to

areas of student interest or career programs.244

The chart below summarizes the changes in

graduation requirements, based on the 9th grade cohort for each year:245


242 Id.

243 Tr. Vol. 31 at 4640:2–4642:3, 4650:1–4654:25 (Test. of M. Tappen).


245 Ex.188.

53

Prior to

1998 1998 1999 2008 2011 2013 2014

Mathematics 3 credits

3 credits

including

Algebra I

3 credits

including

Algebra I

4 credits

including

Algebra I

4 credits

including

Algebra I,

Geometry

4 credits

including

Algebra I,

Geometry

4 credits

including

Algebra I,

Geometry

English

Language

Arts

4 credits 4 credits 4 credits 4 credits 4 credits 4 credits 4 credits

Science 3 credits 3 credits 3 credits 3 credits

3 credits

including

Biology

3 credits

including

Biology

3 credits

including

Biology

Social

Studies 3 credits 3 credits 3 credits 3 credits 3 credits 3 credits 3 credits

Physical

Education ½ credit ½ credit 1 credit

1 credit

with the

integration

of health

1 credit

with the

integration

of health

1 credit

with the

integration

of health

1 credit

with the

integration

of health

Practical or

Performing

Arts

1 credit 1 credit 1 credit 1 credit 1 credit 1 credit 1 credit

Life

Management ½ credit ½ credit ½ credit

Electives 9 credits 9 credits 8½ credits 8 credits 8 credits 8 credits 8 credits

Assessments

11th grade

HSCT in

Communi-

cations

and Math

10th grade

FCAT

Reading

and Math

10th grade

FCAT

Reading

and Math

10th grade

FCAT

Reading

and Math

10th grade

FCAT

Reading

and Math

10th grade

FCAT

Reading

and

Algebra I

EOC

10th grade

English

Language

Arts FSA,

Algebra I

EOC

In addition to the credit requirements, the assessment requirements also have 148.

increased in rigor. Beginning with the class entering 9th grade in 1998, Florida moved from a

minimum-competency graduation test to requiring high school graduates to earn a Level 3 on the

54

state assessments in reading and math, and the state-wide standards and assessments have

increased in rigor with the FCAT, FCAT 2.0, and now the FSA.246

Students have multiple opportunities to retake the exams before they are 149.

scheduled to graduate. The current graduation assessments are a 10th grade assessment in

English language arts and an Algebra I assessment that is typically taken by students in 9th

grade. Students have up to five opportunities to pass the grade 10 English language arts

assessment before their scheduled graduation. The Algebra I EOC is offered four times a year;

thus, depending on how early a student takes the assessment, he or she will have multiple

opportunities to retake the assessment if needed.247

Students also have alternative means by which to meet the assessment 150.

requirements for graduation. For example, a student may earn a concordant score on the ACT or

SAT for English language arts and/or a comparative score on the PERT for Algebra I in order to

satisfy the assessment requirements.248

For the group of Florida students scheduled to graduate

in 2013, 20% of those who took the SAT or ACT scored a Level 1 or 2 on the FCAT 2.0.249

Assessments play an important role in ensuring that students have mastered the 151.

required content, and, with multiple avenues to meet that requirement, assessments are not a

barrier to graduation, but rather an assurance that students have learned what is expected.250

246 Tr. Vol. 31 at 4640:2–4642:3 (Test. of M. Tappen); Tr. Vol. 30 at 4482:7–4483:7 (Test. of J.

Copa); Ex. 188.


Copa).


Tappen); Tr. Vol. 30 at 4482:7–4483:7 (Test. of J. Copa).

249 Tr. Vol. 30 at 4484:7–20 (Test. of J. Copa).


Copa).

55

Florida‘s implementation of more rigorous standards and required courses for 152.

graduation is based on the needs of career-readiness in addition to college-readiness. For

example, students interested in military service must sit for the Armed Services Vocational

Aptitude Battery, which includes subtests in areas such as general science, word knowledge,

paragraph comprehension, mathematics knowledge, and mechanical comprehension.251

Students in Florida continue to graduate at higher rates than ever before with 153.

fewer students opting for less rigorous diploma alternatives.252

(See Section IV.E below for

details on improvements in Florida‘s graduation rates over time.)

The rationality of Florida‘s high-school graduation requirements also is supported 154.

by evidence that over half of the states in the nation require students to attain certain scores on

high school assessments in order to receive a high school diploma.253

Florida‘s high-school

graduation requirements represent reasonable policy choices based on research and a desire to

continue Florida‘s improved student performance.254

Teacher Quality and Educator Policies F.

Florida has implemented many statewide programs to ensure that high-quality 155.

teachers are available in Florida‘s school districts.255

Florida‘s approach to educator quality is

designed so that all teachers and school leaders are well-selected, prepared, supported, respected,

and accountable for their students‘ achievement.256

Florida‘s framework for implementation of

251 Tr. Vol. 31 at 4640:2–4643.10 (Test. of M. Tappen).

252 Tr. Vol. 31 at 4644:13–4647:12 (Test. of M. Tappen); Exs. 190, 4050, 5328, 5329.


254 See Tr. Vol. 31 at 4644:13–4647:12 (Test. of M. Tappen); Exs. 190, 4050, 5328, 5329.

255 Tr. Vol. 31 at 4710:24–4712:14 (Test. K. Hebda).

256 Tr. Vol. 31 at 4712:15–4713:24 (Test. K. Hebda).

56

educator quality appropriately places the state in the role of setting standards, providing technical

assistance, and monitoring and reporting results, while decisions about employment, assignment,

evaluation, and specific compensation of individuals who meet those standards are appropriately

assigned to local school districts.257

This design, the policies enacted to implement it, and the

results yielded, support Florida‘s policies as being rational and research-based.258

Florida‘s teacher quality policies have been rated the best in the nation for 156.

multiple years by the National Council for Teacher Quality, which further supports Florida‘s

policy choices as well-founded and rationally-based.259

Florida‘s teacher quality policies are

also supported by the results on the quality and effectiveness of Florida teachers. In 2012–13,

nearly 98% of Florida teachers were rated ―effective‖ or ―highly effective‖ by their school

districts.260

And in 2013–14, over 94% of classes were taught by teachers rated as ―highly

qualified‖ under federal law.261

Florida has aligned its teacher quality policies to effective classroom instruction 157.

and student learning results, beginning with the Florida Educator Accomplished Practices, which

provide the expectations for all Florida educators.262

These practices were developed in

conjunction with Florida teachers, compiled from research and practical evidence, and adopted

by the State Board of Education. Florida law requires that Florida teachers are trained, certified,

257Ex. 199; Tr. Vol. 31 at 4712:15–4717:7 (Test. of K. Hebda); Tr. Vol. 26 at 3970:9–16,

3973:7–21, 3975:8–13 (Test. of P. Stewart); Tr. Vol. 30 at 4608:24–4609:24 (Test. of M.

Tappen).

258 Tr. Vol. 31 at 4717:8–4718:13 (Test. of K. Hebda).


260 Ex. 1883; see also Ex. 1884.

261 Ex. 3368; Tr. Vol. 31 at 4736:16–4737:15 (Test. of K. Hebda).

262 Ex. 3371; Tr. Vol. 31 at 4721:12–4726:1 (Test. of K. Hebda).

57

and evaluated based on these standards, which provides clear and uniform expectations.

Programs to train and evaluate teachers in colleges of education and in school districts are

approved based in part on alignment with the practices.263

Teacher Preparation and Certification

Supported by national research, Florida has designed teacher preparation 158.

programs and certification processes that hold teachers to high standards while affording them a

choice of delivery mechanisms to become qualified. Florida provides a number of pathways to

teacher certification, including directly to a Professional Certificate, or through a Temporary

Certificate to a Professional Certificate, but each pathway requires that teachers meet the same

standards of subject-matter knowledge and hands-on experience, as well as submit to a

background check.264

The U.S. Department of Education has accepted both Florida‘s Temporary

and Professional Certificates as evidence that a teacher has earned ―full‖ certification to meet

―highly qualified‖ status under NCLB.265

The Florida Teacher Certification Examinations have

received national recognition from the National Center for Teacher Quality for their rigor and

alignment to student content standards.266

Florida also provides pathways for teachers certified

in other states to become certified in Florida by demonstrating that they meet Florida‘s

requirements through their state‘s approved preparation program or valid Professional

Certificate.267

Unlike several other states, Florida‘s certificate is not ―permanent‖ but must be

263 Tr. Vol. 26 at 3970:9–16 (Test. of P. Stewart); Tr. Vol. 31 at 4721:12–4726:1, 4737:24–

4740:16 (Test. of K. Hebda) ; Exs. 3370, 3371, 4022.

264 Ex. 4021; Tr. Vol. 31 at 4727:4–4728:2, 4729:12–4734:7 (Test. of K. Hebda).

265 Tr. Vol. 31 at 4728:3–17 (Test. of K. Hebda).

266 Tr. Vol. 31 at 4734:8–4736:15 (Test. of K. Hebda); Ex. 4022.

267 Tr. Vol. 31 at 4727:4–4728:2, 4729:12–4734:7 (Test. of K. Hebda); Ex. 4021.

58

renewed every five years through continuing education or passing a subject-area examination.268

Florida also offers several options for teacher preparation programs and has been recognized as a

leader in accountability for teacher preparation programs in the nation, ensuring that the teacher

preparation programs are aligned with the student content standards used in Florida schools.269

Teacher Evaluation and Professional Development

Florida‘s teacher evaluation and professional development system was created 159.

through collaboration with educators and experts and is designed to focus educators on college

and career readiness for all the students they teach and to provide timely and meaningful

feedback to continually improve teaching practice.270

It is a local school district responsibility to

design and deliver its own professional development and evaluation systems in accordance with

state law.271

Teacher professional development is provided at the district level, although the 160.

Department provides support to districts in the delivery of their professional development

systems through a number of initiatives.272

The Department also has responsibility under state

law to review and approve each district‘s professional development system, which is guided by

Florida‘s Professional Development System Evaluation Protocol, based on Florida‘s Professional

Development Standards. 273

268 Tr. Vol. 31 at 4737:16–23 (Test. of K. Hebda).



271 Tr. Vol. 31 at 4748:6–4750:2, 4751:15–4753:1 (Test. of K. Hebda); Tr. Vol. 26 at 3975:24–

3976:6 (Test. of P. Stewart); Exs. 1887, 1885.



59

As part of its accountability system, Florida requires that, while local school 161.

districts develop and adopt their own teacher-evaluation systems, a certain percentage of a

teacher‘s evaluation must incorporate a student-performance component.274

While Florida law

connects each teacher‘s and principal‘s evaluation to increased compensation and contract

renewal, Florida maintains a system of local control in that performance standards for the final

performance evaluation rating are set by the local school district, and amounts and terms for

compensation and contracts are locally negotiated between each school district and the local

teachers‘ union.275

While Florida has a history of including student performance in teacher 162.

evaluation, its current teacher-evaluation system is supported by, and indeed was required by,

federal law and policy.276

Florida was one of 19 states to be awarded a federal Race to the Top

(―RTT‖) grant, and it was one of 43 states to be granted a flexibility waiver under the Elementary

and Secondary Education Act (―ESEA‖).277

A requirement of both federal programs focused on

linking student performance and growth to teacher evaluations. Florida used part of its RTT

grant to revise its teacher evaluation system to meet these requirements, which were incorporated

in Florida law in the Student Success Act.278

The value-added model and other aspects of the

revised teacher-evaluation system were included in Florida‘s RTT application and the

274 § 1012.34, Fla. Stat.; Tr. Vol. 31 at 4740:17–4748.4 (Test. of K. Hebda); Ex. 1887.

275 Tr. Vol. 31 at 4740:17–4750:2 (Test. of K. Hebda); Tr. Vol. 32 at 4791:19–4795:19 (Test. of

K. Hebda); Ex. 1887.


277 Exs. 1413, 1440, 1442, 3363, 3774, 3973.

278 Ch. 2011-1, Fla. Laws.

60

Memorandum of Understanding agreed to by the vast majority of Florida school districts (69 of

72 districts, including lab schools), 49 of these with teachers‘ union support.279

For teachers teaching courses and grade levels covered by the statewide 163.

assessments, the student-performance component must be based on a ―value-added measure,‖ or

―VAM‖ score, which is calculated according to a state-developed formula for measuring student

learning growth.280

For all other teachers, districts are given flexibility in the ways in which

student performance is taken into account for the particular course, including using district-

developed assessments or other student performance measures. Many districts have opted to use

the VAM scores in various ways for teachers who do not teach FSA-tested subjects, but this is

not a state requirement.281

While Florida law requires that teachers be given performance ratings of either 164.

highly effective, effective, needs improvement, developing, or unsatisfactory, the standards and

cut points for earning each of these ratings are decided locally by each school district.282

The

Department provides support for local districts in implementing these decisions, including

development of state model evaluation systems in conjunction with national experts and Florida

educators, as well as providing training with national experts to school districts.283

Florida‘s value-added model is meant to measure the impact of a teacher on 165.

student learning by controlling for other factors that may impact the learning process. In other

words, it is designed to mitigate the influence of differences among the entering class of students

279 Exs. 3781, 3367; Tr. Vol. 32 at 4763:22–4764:7 (Test. of K. Hebda).



282 Tr. Vol. 31 at 4740:17–4748:4 (Test. of K. Hebda); Tr. Vol. 32 at 4767:22–4768:15 (Test. of

K. Hebda); Ex. 1887.


61

so that schools and teachers do not have advantages or disadvantages simply as a result of the

students who attend a school or are assigned a class.284

Florida‘s model is research-based and was the product of an extensive and 166.

inclusive process of stakeholder input to identify the type of model that should be used and the

factors that should be accounted for in the model. The State formed a Student Growth

Implementation Committee (―SGIC‖), composed of 27 members from across the State, including

teachers, school administrators, district-level administrators, postsecondary education teachers,

representatives from the business community, and parents, for questions, in-depth discussions,

and perspectives from different points of view. The SGIC‘s recommendation was adopted in full

by the Commissioner in June 2011.285

The model adopted by Florida takes into account a number of student factors— 167.

including prior years‘ achievement scores, attendance, mobility, and ELL or disability status—as

well as a school component, which recognizes that there are aspects of the school for which the

teacher should not be held directly accountable.286

Each year that VAM scores are calculated, the Department conducts ―impact 168.

analyses‖ to ensure that the VAM its meeting its goal of leveling the playing field.287

This

impact data indicates that there is no discernible relationship between a teacher‘s VAM score and

the makeup of the teacher‘s class—specifically, the percentage of students that are economically

disadvantaged, the percentage of students with disabilities, the percentage of ELLs, the

percentage of gifted students, the percentage of minority students, and the mean prior academic

284 Tr. Vol. 32 at 4759:6–4763:21 (Test. of K. Hebda); Exs. 1887, 1877, 3982.

285 Tr. Vol. 32 at 4759:6–4763:21 (Test. of K. Hebda); Exs. 1877, 1889, 1887, 3980.

286 Tr. Vol. 30 at 4489:12–4492:2 (Test. of J. Copa); Exs. 1887, 3980, 119.

287 Tr. Vol. 30 at 4496:1–12 (Test. of J. Copa); Exs. 3982, 3983, 120, 121.

62

performance of the class. This means that all teachers have the same opportunity to earn a high

VAM score regardless of the makeup of their assigned classes.288

Several of Plaintiffs‘ witnesses complain about the student-performance 169.

component of teacher evaluation, specifically VAM. These complaints consist almost entirely of

individual teachers lamenting the ―fairness‖ of VAM to teachers, but there is no evidence that

VAM has negatively impacted the quality of education provided to Florida students.289

Indeed,

each of these teachers affirmed that VAM has not negatively impacted the quality of education

or instruction that they provide to their students.290

Moreover, Plaintiffs‘ own witnesses do not

agree on what part, if any, of the teacher evaluation system they think is unfair to teachers—

some do not think student performance has any place in teacher evaluations and want to get rid

of the entire system,291

while others think it should be considered but complain about how it

applies to them under their district‘s chosen system,292

and still others have no objection to

VAM293

or even think it is a good policy.294

These complaints do not support the allegation that

Florida‘s teacher evaluation system is not a rationally-based policy for improving educational

quality.

288 Tr. Vol. 32 at 4775:2–4777:8 (Test. of K. Hebda); Tr. Vol. 30 at 4496:13–4498:7 (Test. of J.

Copa); Exs. 1850, 3982, 120, 121.

289 Tr. Vol. 23 at 3532:3–17, 3499:4–24 (Dep. Test. of J. Hiltz); Tr. Vol. 21 at 3155:22–3156:7

(Test. of L. Flynt); Tr. Vol. 13 at 1919:1–19 (Test. of K. Cook); Ex. 5353 (Dep. of B. Cavallero)

at 17:20–18:1.

290 Tr. Vol. 23 at 3499:20–24 (Dep. Test. of J. Hiltz); Tr. Vol. 21 at 3187:10–3188:11 (Test. of L.

Flynt); Tr. Vol. 13 at 1951:7–15 (Test. of K. Cook); Ex. 5353 (Dep. of B. Cavallero) at 106:11–

19.

291 E.g., Tr. Vol. 21 at 3118:17–21 (Test. of K. Oropeza).

292 E.g., Tr. Vol. 23 at 3532:3–17 (Dep. Test. of J. Hiltz).

293 E.g., Tr. Vol. 20 at 2957:25–2958:3 (Test. of M. McGriff).

294 E.g., Tr. Vol. 5 at 686:2–16 (Test. of N. Vitti).

63

As further basis for the nature of this as a policy debate, in response to 170.

stakeholder concerns about VAM, the Legislature amended the relevant laws in 2015 to reduce

the student-performance component from being at least 50% of the teacher evaluation to at least

33%, as well as to clarify other aspects of the requirement that would reduce reliance on student

assessment.295

Even with this amendment, some districts, in negotiation with their teachers‘

unions, have opted to maintain the student-performance component at 50% of teacher

evaluations.296

Florida‘s teacher-evaluation system and VAM have been challenged by teachers 171.

in both state and federal court and have been upheld by every court that has reviewed them.

Both the First District Court of Appeal and the U.S. Court of Appeals for the Eleventh Circuit

have rejected constitutional challenges to VAM and the Student Success Act.297

Teacher Recruitment, Assignment, and Compensation

The Department provides support to local districts in their teacher recruitment 172.

efforts. Teacher assignment is a district responsibility, and it is often negotiated between the

district and the local union. State law, in compliance with the ESEA, requires that schools with

high percentages of poor or minority students may not have lower percentages of effective

teachers than the district average.298

State law also provides each school principal with the right

to refuse the assignment of a low performing teacher to his or her school if he or she determines

295 Ch. 2015-6 , Fla. Laws; Tr. Vol. 31 at 4740:17–4748:4 (Test. of K. Hebda);

296 Tr. Vol. 21 at 3177:7–3179:21 (Test. of L. Flynt); Tr. Vol. 32 at 4740:17–4748:4, 4766:22–

4767:21 (Test. of K. Hebda); Ex. 1767.

297 See Robinson v. Stewart, 161 So. 3d 589 (Fla. 1st DCA 2015) (en banc), pet. for review

denied, No. SC15-323 (Fla. Sept. 8, 2015); Cook v. Bennett, 792 F.3d 1294 (11th Cir. 2015).

298 Tr. Vol. 26 at 3973:7–17 (Test. of P. Stewart); Tr. Vol. 31 at 4726:2–4727:3 (Test. of K.

Hebda); Tr. Vol. 32 at 4786:2–14 (Test. of K. Hebda); § 1012.2315, Fla. Stat.

64

it is not in the best interest of the students.299

The Department monitors this and other

requirements through the school improvement system.300

Teacher compensation also is determined locally by the school district through 173.

negotiation with the local teachers‘ union.301

Florida has, however, led the way in providing for

performance pay for teachers based on their district-assigned performance rating.302

Teachers

can also earn additional compensation each year they are assigned to a high-needs school, are

teaching in a hard-to-staff grade or subject, or complete additional academic responsibilities.303

These policies provide the alignment of teacher compensation with students who need excellent

teachers the most and to the learning outcomes the State is seeking for all students.304

Florida‘s educator quality policies, including its teacher evaluation system, are 174.

research-based and well-considered.305

School Improvement and Differentiated Accountability G.

Much of Plaintiffs‘ trial presentation focused on the State‘s Differentiated 175.

Accountability program (―DA‖), which aims at directing school-improvement strategies toward

schools identified as lower-performing under the State‘s school grading system. The Court

understands the purpose and structure of DA, the complex system of resources and the supports

299 Tr. Vol. 31 at 4726:2–4727:3 (Test. of K. Hebda); Tr. Vol. 32 at 4786:2–14 (Test. of K.

Hebda).

300 Id.

301 Tr. Vol. 26 at 3975:20–23 (Test. of P. Stewart); Art. I, § 6, Fla. Const.; §§ 447.201, .447.203,

Fla. Stat.

302 Tr. Vol. 32 at 4791:19–4795:19 (Test. of K. Hebda); § 1012.22, Fla. Stat.

303 Id.


305 Tr. Vol. 28 at 4218:21–4222:22 (Test. of E. Hanushek); Tr. Vol. 32 at 4795:21–4797:16

(Test. of K. Hebda).

65

available to districts in educating students in these schools. However, a school should not be

allowed to remain indefinitely in the DA program without there being some concern that the

―state‖ is tolerating or being complacent about the inability of the local district to improve that

school‘s performance. This is especially true since the Defendant‘s own evidence suggest that

improvements can be made without additional resources.

Florida law, § 1008.33, Fla. Stat., provides the State Board of Education with 176.

authority to hold schools and districts accountable for student improvement by, among other

things, implementing a state system of school improvement. As part of this system of school

improvement, Florida‘s current DA program was developed in 2008–09 as a pilot program and

enhanced as part of the RTT program and the ESEA flexibility waiver.306

The program employs

staff in five regions of the state to provide district and school administrators with research-based

school-improvement strategies focused on changes in leadership and school culture, not the

infusion of additional resources. Staff provides districts with school improvement planning,

leadership quality improvement, educator quality improvement, professional development,

curriculum alignment and pacing, and use of continuous improvement and monitoring plans to

identify barriers and strategies for school improvement. Schools assigned a ―D‖ or ―F‖ grade

under the State‘s school-grading system receive more intense intervention, which has included

research-based turnaround option plans with demonstrated records of effectiveness.307

306 Tr. Vol. 10 at 1395:5–7, 1449:18–1452:5 (Test. of S. Houston); Exs. 3781, 3973.

307 Exs. 1261, 1948, 1949; Tr. Vol. 26 at 4039:20–4041:18 (Test. of P. Stewart); Tr. Vol. 30 at

4586:25–4588:1, 4591:7–4600:9, 4601:11–4602:1 (Test. of M. Tappen). See generally Tr. Vol.

10 at 1393:2–1466:14 (Test. of S. Houston); Tr. Vol. 12 at 1827:20–1874:7 (Test. of G. Sitter);

Tr. Vol. 14 at 2180:10–2199:13 (Test. of W. Green); Tr. Vol. 15 at 2209:22–2279:13 (Test. of E.

Thompson); Tr. Vol. 19 at 2829:2–2905:11 (Test. of J. Browder); Tr. Vol. 20 at 2911:14–2927:6

(Test. of J. Browder).

66

DA regional support staff does not implement reforms or dictate what reforms 177.

schools or districts must make. The State uniformly applies its school-grading criteria to identify

problem areas in districts and then provides support to districts in identifying research-based

solutions to be implemented by the local school district for long-term, systemic changes.308

Plaintiffs have asserted that there have been reductions in funding for the DA 178.

program. This is true, however, the evidence indicates the RTT funds used to enhance the DA

program were intended to be capacity-building, with the goal of teaching local school district

personnel how to implement school improvement strategies in their own districts, in part to

support the ESEA flexibility waiver.309

The ESEA has now been amended with the Every

Student Succeeds Act, changing the applicable federal requirements, and the Court finds that it is

reasonable that the state program would change as well. 310

The Court also finds that, overall,

implementation of the DA program and subsequent changes to the program are rationally-based

decisions in light of the State‘s overall system of school improvement and accountability.

Section 1008.33, Fla. Stat., requires that the school improvement and 179.

accountability system established by the State Board of Education ―institutes appropriate

measures for enforcing improvement.‖311

The Court finds that Plaintiffs have not made a claim

under this section, nor could they. Section 1008.32, Fla. Stat., which grants the State Board of

Education authority for oversight enforcement of local school districts, makes clear that any

308 Tr. Vol. 10 at 1411:7–23, 1463:2–22 (Test. of S. Houston).

309 Tr. Vol. 10 at 1452:6–1454:2 (Test. of S. Houston).

310 Ex. 4048; Tr. Vol. 10 at 1439:7–1442:14 (Test. of S. Houston).

311 § 1008.33(2)(a)., Fla. Stat.

67

grant of enforcement authority does not ―create a private cause of action or create any rights for

individuals or entities.‖312

Plaintiffs have not pleaded any claim regarding a failure by the State Board to 180.

―enforce public school improvement.‖ Instead, the complaint says nothing about ―differentiated

accountability‖ or ―school improvement‖ and, on the contrary, alleges that the standardized

assessments upon which the entire accountability system is based are ―misuse[d]‖ and that the

system ―fails to recognize the many other factors that affect student achievement.‖313

During her

trial testimony, the Plaintiffs Fund Education Now‘s (―FEN‖) representative specifically

disclaimed asking the Court to require the State to do more to enforce school turnaround314

and

confirmed that, on the contrary, FEN wants the Court to strike down all of the State‘s

accountability statutes.315

And, when pressed by the Court to identify precisely what relief they

are seeking, Plaintiffs‘ counsel asked for ―a declaration that the State has failed to adequately

fund the education system in a way that‘s allowing all students to obtain a high-quality

education,‖316

not a declaration that the State Board of Education is violating § 1008.33.

Nevertheless, the Court finds that the accountability statutes have, overall, been 181.

reasonably complied with, including the requirement that schools with consecutive ―F‖ grades

implement turnaround option plans. Section 1008.33(2)(a) requires that the DA system be read

312 § 1008.32(5), Fla. Stat.

313 2d Am. Compl. ¶¶ 119, 120.

314 Tr. Vol. 21 at 3118:22–3119:15, 3120:12–21 (Test. of K. Oropeza).

315 Tr. Vol. 21 at 3117:18–22 (Test. of K. Oropeza).

316 Tr. Vol. 26 at 3905:19–22; see also Tr. Vol. 26 at 3899:14–21 (―And so it‘s not that you have

to have, you know, an exact dollar amount, but you have to figure out what is it that is required

for us to have a high-quality education, and the State has never done a cost analysis as to what

are the conditions we need to make sure all children are achieving on our standards and how

much does that actually cost?‖).

68

in conjunction with § 1008.34, Fla. Stat., which allows for a transition year for the 2014–15

school grades due to the first administration of the new Florida Standards Assessment.317

In

response to the Court‘s questions about two elementary schools in Pinellas County with multiple

years of ―F‖ grades, Commissioner Pam Stewart testified that, in accordance with §§ 1008.33

and 1008.34, these schools must improve their grade for the current (2015–16) school year or be

required to select a different turnaround option and different implementation plan.318

Moreover,

§ 1008.33 and related statutes place responsibility on the local school districts to implement

school improvement and turnaround option plans.319

Even if a claim could be brought under the

statute, any claim as to the schools in Pinellas County would require that the school district be a

party.

Plaintiffs‘ assertion that schools with high levels of low-income and minority 182.

students are not being given additional resources also is not supported by evidence. In fact,

additional resources are directed to schools with ―D‖ and ―F‖ grades and to schools with higher

levels of poverty, as these schools spend substantially more per pupil than schools with higher

levels of performance and socioeconomic status.320

School improvement plans for two schools

in Pinellas County with four consecutive ―F‖ grades, Maximo Elementary School and Melrose

Elementary School, show that the district has placed many additional resources in these

317 § 1008.34(7)(a), Fla. Stat. (―A school may not be required to select and implement a

turnaround option pursuant to s. 1008.33 in the 2015–2016 school year based on the school‘s

2014–2015 grade or school improvement rating under s. 1008.341, as applicable.‖).


319 See, e.g., §§ 1008.33(1)(c), (4)(a), 1008.385(1)(b), (2)(b), 1001.42(18), Fla. Stat.

320 Ex. 262; Tr. Vol. 32 at 4856:15–4860:5 (Test. of L. Champion). These funding differences

are described in more detail in Section IV.B.

69

schools,321

and another low-performing school in the district, Fairmont Park Elementary School,

received a $2.8 million school improvement grant but maintained an ―F‖ grade.322

The evidence

shows that low performance in certain schools is due in large part to local implementation

issues—many schools (61 and 30, respectively) with the same or higher percentages of low-

income and minority students as Maximo and Melrose have had four consecutive years of ―A‖

and ―B‖ grades.323

And an analysis of traditional schools with a majority of minority and a

majority of low-income students shows that, in 2013–14, 37% of these schools were graded ―A‖

or ―B‖ and 37% were graded ―C,‖ while only 17% were graded ―D‖ and only 9% were graded

―F.‖ Over twice as many schools earned an ―A‖ than received an ―F.‖324

While the Court is concerned about schools that may have ―F‖ grades for 183.

consecutive years, the evidence shows that this has occurred in only a small fraction of schools

statewide. For the 2013–14 school year, only 5% of traditional schools in the state had an ―F‖

grade, only 1.37% had been graded ―F‖ for two or more consecutive years, and only 0.07% (two

schools, Maximo and Melrose) had received an ―F‖ for four consecutive years.325

From its

inception in the late 1990s, the evidence shows the State‘s accountability system has been

generally effective in turning schools around, increasing schools from ―D‖ or ―F‖ grades to

grades of ―C‖ or above.326

Although there often is seen an increase in ―D‖ and ―F‖ schools when

changes to the assessments or school grading formula are made, this is part of the system of

321 Exs. 1899, 1901.

322 Tr. Vol. 20 at 2921:13–21 (Test. of J. Browder).

323 Ex. 5345.

324 Ex. 5346.

325 Ex. 5345.

326 Exs. 1261, 1940.

70

continuous improvement, as these schools generally improve in response to the changes.327

These improvements, in combination with the increased performance on state and national

assessments and increased graduation rates over time,328

show that the State‘s system of school

improvement and differentiated accountability is rationally related to the goal of increasing

student achievement. However, the weakest part of the Defendants presentation was in their

handling of local School Districts failure to address the problem of long term ‗F‖ schools at the

local level. At some point in time the State Board should do more if the local School District will

not, especially if Defendants main argument, that ―better teacher effectiveness, not more

resources,‖ is all that is needed. While recognizing that the State Board can only do what the

Legislature authorizes, and also recognizing that there are factors that have to be taken into

consideration in dealing with local school districts, the Defendants response to long term ―F‖

schools, while found to be reasonable by this Court in the overall context of this lawsuit was the

weakest point in the State‘s Educational policy that was presented at trial.

Discipline Policies H.

Plaintiffs‘ contentions regarding suspensions and expulsions in Florida are 184.

unsupported by the weight of the evidence.329

Florida has been successful in decreasing

incidents of student discipline over the past several years. In 2007, the state-wide rate of in-

school suspension was 9.96%, and the state-wide rate of out-of-school suspension was 8.79%.

By 2013, these rates had decreased to 7.31% for in-school suspension and 6.34% for out-of-

school suspension.330

327 Exs. 1829, 1830; Tr. Vol. 29 at 4382:2–4389:24 (Test. of J. Copa).

328 See Sections III.A, C, and E, below.

329 2d Am Compl. ¶¶ 194–95.

330 Tr. Vol. 31 at 4671:15–25 (Test. of M. Tappen); Ex. 187.

71

Student discipline decisions are made at the local district—indeed the 185.

classroom—level. Although Florida law appropriately tasks local school boards with

responsibility and control over student health, safety, and welfare,331

the Florida Department of

Education‘s Office of Safe Schools provides technical assistance and guidance to school districts

in these areas.332

In 2009, the Legislature amended § 1006.13, Fla. Stat., which deals with ―zero 186.

tolerance‖ policies, to ensure implementation of equitable and reasonable discipline policies; to

promote a safe and supportive learning environment in schools; to protect students and staff from

conduct that poses a serious threat to school safety; and to encourage schools to use alternatives

to expulsion or referral to law enforcement agencies by addressing disruptive behavior through

restitution, civil citations, teen courts, neighborhood restorative justice, or similar programs. It

also requires that zero-tolerance policies must apply equally to all students regardless of their

economic status, race or disability.333

With the more recent recognition of inappropriate hazing practices as well as 187.

bullying and harassment, additional legislation and policies have been implemented to increase

student safety.334

Findings Related to Student Performance and Outcomes IV.

Since the implementation of statewide assessment and accountability reforms 188.

beginning in the 1990s, Florida has seen a dramatic increase in student achievement on a variety

331 §§ 1006.07–.12, Fla. Stat.


Tappen).


334 See, e.g., §§ 1006.135 and 1006.147, Fla. Stat.

72

of measures, including national and international assessments, state assessments, graduation

rates, and Advanced Placement participation and performance.335

Florida has also seen a closing

of ―achievement gaps‖ among low-income and minority students at a rate faster than that of the

rest of the nation.336

National Assessment of Educational Progress (“NAEP”) A.

Florida has seen continual increases in performance on the National Assessment 189.

of Educational Progress (―NAEP‖), known as the ―Nation‘s Report Card,‖ outperforming the

nation in several areas.337

NAEP is an assessment directed by the U.S. Department of

Education‘s National Center for Education Statistics (―NCES‖) to a representative sample of

students across the nation, allowing for state-to-state and state-to-national comparisons over

time.338

All states are required by federal law to participate in the grade 4 and grade 8 190.

NAEP assessments in reading and mathematics,339

and Florida law also requires participation.340

Scores are reported in terms of each state‘s average scale score as well as the percentage of

students meeting specified achievement levels: Basic (defined as ―partial mastery‖); Proficient

(―solid academic performance‖); and Advanced (―superior performance‖); as well as Below

Basic. Since 2003, NAEP has been administered every other year, with 2015 being the most

335 Tr. Vol. 26 at 3988:20–24, 3997:14–21, 3998:19–3999:4, 4000:7–13 (Test. of P. Stewart).

336 Tr. Vol. 26 at 3998:10–3999:4; 3999:18–25 (Test. of P. Stewart).

337 Tr. Vol. 26 at 3997:14–4006:18 (Test. of P. Stewart); Tr. Vol. 28 at 4193:12–15 (Test. of E.

Hanushek); Tr. Vol. 27 at 4176:9–4183:3 (Test. of E. Hanushek).

338 Tr. Vol. 28 at 4273:3–19 (Test. of E. Hanushek); Tr. Vol. 26 at 3995:23–3996:2 (Test. of P.

Stewart).

339 20 U.S.C. § 6311(a)(1)(b), (g)(2)(D); Exs. 1358, 1390, 1391; Tr. Vol. 26 at 3996:3–6 (Test. of

P. Stewart); Tr. Vol. 29 at 4455:4–4456:1 (Test. of J. Copa).

340 § 1008.22(2), Fla. Stat.

73

recent administration. Because NAEP has been administered for a long time period, it allows for

longitudinal comparisons of performance.341

The Court also notes that, while comparing rates of scoring Proficient among 191.

states may be useful, looking at a state‘s rate in isolation does not give a full picture of that

state‘s performance. Proficient on NAEP is a high bar, and even in the state with the highest

overall rates of scoring Proficient, Massachusetts, only 50% of all 4th graders—and 17% of its

Hispanic/Latino 8th graders—scored at or above Proficient in reading on the 2015 NAEP. (By

comparison, 26% of Florida‘s Hispanic/Latino 8th graders scored at or above Proficient in

reading that year.) 342

Florida‘s improvement on NAEP followed the implementation of the reforms 192.

begun in the late 1990s. In 1998, Florida underperformed the nation in the average scale score

achieved by students in grade 4 reading—over 7 points below the national public and ranking

higher than only 5 other states and the District of Columbia. In 2015, the most recent NAEP

administration, Florida‘s average scale score was almost 6 points higher than the national public

and ranked higher than all but 9 other states.343

Similar improvement has been seen in grade 4 mathematics. In 2003 (the first 193.

year Florida participated in the NAEP mathematics assessment), Florida‘s average scale score

was slightly below the national public and ranked higher than only 18 other states and the

341 Tr. Vol. 26 at 3996:3–6, 4004:4–6, 4006:15–18 (Test. of P. Stewart); Tr. Vol. 28 at 4273:3–

19 (Test. of E. Hanushek).


343 Tr. Vol. 26 at 3996:12–18, 3997:6–10 (Test. of P. Stewart); Exs. 4053, 5336, 5337.

74

District of Columbia. In 2015, Florida‘s average scale score was almost 3 points higher than the

national public and ranked higher than all but 17 other states.344

It is well-established—as admitted by several of Plaintiffs‘ expert and fact 194.

witnesses—that ―achievement gaps‖ exist throughout the country with respect to student

performance of certain minority and low-income subgroups. For example, NCES has released

statistical analysis reports—―Achievement Gaps: How Black and White Students in Public

Schools Perform in Mathematics and Reading on the National Assessment of Educational

Progress‖ (2009) and ―Achievement Gaps: How Hispanic and White Students in Public Schools

Perform in Mathematics and Reading on the National Assessment of Educational Progress‖

(2011)—detailing the disparities in all states and nationally in the performance of Black/African-

American students and Hispanic/Latino students as compared with White students on NAEP. It

also is well-recognized that there is a similar pattern when comparing the NAEP performance of

students eligible for free-and-reduced-price lunch (low-income students) and non-eligible

students.345

Though these gaps also exist in Florida, the NCES reports, as well as more recent 195.

NAEP data, show that Florida‘s gaps are smaller than the national gaps, and Florida has

outpaced the nation in closing these gaps.346

For example, on NAEP grade 4 reading, between

1998 and 2015,

a. The average scale score for the nation‘s Black/African-American students

increased by 14 points, while the average scale score for Florida‘s

Black/African-American students increased by 27 points. The gap between

344 Tr. Vol. 26 at 4000:24–4001:9 (Test. of P. Stewart); Exs. 4056, 5331, 5332.

345 Exs. 1418, 1419.

346 Exs. 1418, 1419.

75

the nation‘s Black/African-American students and its White students

decreased by 6 points, while Florida‘s gap decreased by 9 points.347

b. The average scale score for the nation‘s Hispanic/Latino students increased by

16 points, while the average scale score for Florida‘s Hispanic/Latino students

increased by 26 points. The gap between the nation‘s Hispanic/Latino

students and its White students decreased by 7 points, while Florida‘s gap

decreased by 8 points.348

c. The average scale score for the nation‘s free-and-reduced-price-lunch-eligible

students increased by 14 points, while the average scale score for Florida‘s

free-and-reduced-price-lunch-eligible students increased by 30 points. The

gap between the nation‘s free-and-reduced-price-lunch-eligible students and

its non-eligible students decreased by 3 points, while Florida‘s gap decreased

by 11 points.349

And on NAEP grade 4 mathematics, between 2003 and 2015, 196.

a. The average scale score for the nation‘s Black/African-American students

increased by 8 points, while the average scale score for Florida‘s

Black/African-American students increased by 13 points. The gap between

the nation‘s Black/African-American students and its White students

decreased by 3 points, while Florida‘s gap decreased by 5 points.350





76

b. The average scale score for Florida‘s Hispanic/Latino students increased by 8

percentage points, and the gap between Florida‘s Hispanic/Latino students and

its White students remained less than two thirds the size of the nation‘s gap.351

c. The average scale score for the nation‘s free-and-reduced-price-lunch-eligible

students increased by 8 percentage points, while the average scale score for

Florida‘s free-and-reduced-price-lunch-eligible students increased by 13

percentage points. The gap between the nation‘s free-and-reduced-price-

lunch-eligible students and its non-eligible students actually increased by 1

point, while Florida‘s gap decreased by 4 points.352

Florida was the only state in the nation between 2011 and 2013 to narrow the 197.

achievement gap between both White students and Black/African-American students and White

students and Hispanic/Latino students in grade 4 and grade 8 in both reading and mathematics.353

The following data from the 2015 NAEP also provide evidence of the success of 198.

Florida‘s minority students, low-income students, and students with disabilities:354

a. Florida‘s grade 4 Hispanic/Latino students continued to have the nation‘s

highest percentage of students performing at or above Basic and at or above

Proficient in reading.355

Florida‘s Hispanic/Latino 4th graders also earned the


352 Tr. Vol. 26 at 4001:10–23 (Test. of P. Stewart); Exs. 4053, 5333.

353 Ex. 1813 at DOE03184; Tr. Vol. 26 at 4009:3–8 (Test. of P. Stewart).

354 Tr. Vol. 26 at 4003:13–4005:22 (Test. of P. Stewart); Exs. 3337.

355 Exs. 3337, 1366.

77

nation‘s highest average scale score in reading and the highest percentage at

or above Proficient in mathematics.356

b. Florida‘s grade 4 free-and-reduced-price-lunch-eligible students had the

nation‘s highest percentage of students performing at or above Basic in

reading and the highest average scale score in reading.357

c. On grade 8 reading, no states scored significantly higher than Florida‘s

Black/African-American358

and Hispanic/Latino students.359

Florida‘s free-

and-reduced-price-lunch-eligible students360

and students with disabilities361

outperformed the nation at or above Basic in grade 8 reading. Florida‘s

Hispanic/Latino students outperformed their national peers in both grade 4362

and grade 8363

reading at or above Basic and at or above Proficient.

d. On grade 4 reading, nearly all Florida subgroups performed better than their

national counterparts in the percentage of students scoring at or above

Basic.364

No states scored significantly higher than Florida‘s Black/African-

American and Hispanic/Latino students, and only three states scored

significantly higher overall. With an average scale score of 224, Florida‘s

356 Exs. 3337, 1362, 1366.

357 Exs. 3337, 1365.

358 Exs. 3337,1372.

359 Exs. 3337, 1371.

360 Exs. 3337, 1369.

361 Exs. 3337, 1368.

362 Exs. 3337, 1366.

363 Exs. 3337, 1371.

364 Exs. 3337, 1365, 1366, 1367.

78

Hispanic/Latino fourth graders significantly outscored the nation. Florida‘s

Hispanic/Latino grade 4 students led the nation with 71 percent scoring at or

above Basic and 34 percent of Hispanic/Latino 4th graders scored at or above

Proficient.365

e. On grade 4 mathematics, most subgroups in Florida performed better than

their national peers scoring at or above Basic.366

Hispanic/Latino students,

free-and-reduced-price-lunch-eligible students, and students with disabilities

outperformed the nation scoring at or above Proficient.367

Florida‘s

Hispanic/Latino students and students with disabilities had the nation‘s second

highest average scale score in grade 4 mathematics.368

f. For both grade 4 and grade 8 Black/African-American and Hispanic/Latino

students, no state had a significantly higher scale score than Florida.369

Plaintiffs‘ suggestion that Florida‘s gains on NAEP 4th grade reading are skewed 199.

by Florida‘s third-grade retention policy is not supported by the evidence.370

Eventually, these

students go on to 4th grade and are included in the NAEP sampling.371

Moreover, Florida‘s

improvement in fourth grade reading performance began before the retention policy was

implemented in the 2003–04 school year, so the policy cannot explain the increase in

365 Exs. 3337,1366.

366 Exs. 3337, 1360, 1361, 1362, 1363.

367 Exs. 3337, 1362, 1361, 1360.

368 Exs. 3337, 1362, 1360.

369 Ex. 3337.

370 2d Am. Compl. ¶¶ 192–93.

371 Tr. Vol. 28 at 4307:5–15 (Test. of E. Hanushek).

79

performance from 1998 to 2003.372

And Florida has continued to outgain the nation since 2003,

even though the number of students retained in third grade has decreased since that time.373

(See

Section IV.F.) The evidence also shows that other states also have third-grade retention policies,

and Plaintiffs have presented no study or analysis to show the magnitude of Florida‘s third-grade

retention policy as compared to other states, or how it might affect Florida‘s scores as compared

with other states and the national average.374

Both Miami-Dade and Hillsborough Counties were recognized as among the top 200.

five performing urban districts in the nation on NAEP in 2013. Miami-Dade was the top

performing urban district in 4th grade reading, while Hillsborough was third-highest. For 8th

grade reading, Hillsborough was again third-highest, with Miami-Dade ranked fifth.375

For

2015, Miami-Dade was ranked the top performing urban district in the nation on NAEP.376

Florida‘s performance on NAEP provides support for the education policies 201.

implemented by the State and indicate that all Florida students are being provided the

opportunity to obtain a high-quality education.

International Assessments B.

The NCES also coordinates U.S. participation in international assessments, 202.

including the Progress in International Reading Literacy Study (―PIRLS‖) and Trends in

International Mathematics and Science Study (―TIMSS‖). PIRLS is an international comparative

study of the reading literacy of students in the equivalent of U.S. grade 4, and TIMSS provides

372 Exs. 1358, 1356; Tr. Vol. 30 at 4511:11–17 (Test. of J. Copa).

373 Ex. 1836; Tr. Vol. 30 at 4511:11–17 (Test. of J. Copa).

374 Tr. Vol. 30 at 4512:7–13 (Test. of J. Copa); Tr. Vol. 28 at 4307:16–21 (Test. of E. Hanushek).

375 Ex. 1813 at DOE03179.

376 Tr. Vol. 24 at 3601:21–23, 3665:1–13 (Dep. Test. of J. Marte).

80

data on the mathematics and science achievement of U.S. students compared to that of students

in other countries. The results are reported by the NCES. In 2011, 53 national and state

education systems participated in the PIRLS, and more than 60 national and state systems

participated in the TIMSS.377

On the 2011 PIRLS, Florida scored second in the world (below only Hong Kong) 203.

and above the U.S. score.378

On the 2011 TIMSS, Florida scored 9th in the world and above the U.S. score in 204.

grade 4 mathematics, and 7th in the world and above the U.S. score in grade 4 science. For

grade 8, Florida scored above the U.S. score in both mathematics and in science.379

In both

grade 4 and grade 8 mathematics.380

Florida students did not score measurably different from

students in Finland, generally considered among the highest performing nations in the world.381

State Assessments C.

In looking at student performance in reading based on state assessments, Florida 205.

students have made improvement. During the time span of FCAT administration (1999 to 2010),

a consistent upward trajectory is seen. In 2001, the first year FCAT was administered in all

grades between third and tenth, less than half (47%) of all assessed students were reading at or

above achievement Level 3. By 2010, the final year the FCAT was administered, nearly two-

377 Tr. Vol. 27 at 4012:11–16, 4016:25–4017:2 (Test. of P. Stewart); Exs. 4018, 4016, 4017.


379 Exs. 4016, 4017.

380 Exs. 4019, 4020.

381 Tr. Vol. 27 at 4182:22–24 (Test. of E. Hanushek).

81

thirds (62%) were reading at or above Level 3, an increase of 15 percentage points over that time

period.382

Following the adoption of more rigorous content standards (the Next Generation 206.

Sunshine State Standards), more rigorous assessments (FCAT 2.0), and more rigorous student

expectations (new performance-level cut scores), a new trend line was begun in 2011 through

2014.383

Because of the changes in the standards and assessment, it is not particularly 207.

useful to directly compare year-over-year student performance on FCAT to that on the FCAT

2.0.384

Although student performance on the more rigorous standards and FCAT 2.0

assessments was overall lower than it was in the final year of the former assessment (FCAT), it

generally improved over the four years of administration.385

In 2014, 58% of students across grades 3 through 10 scored at or above Level 3 in 208.

reading on FCAT 2.0, a two percentage point improvement over 2011. Even though more

rigorous standards and assessments were put into place with FCAT 2.0 in 2011, the percent of

students in grades 3 through 10, scoring at or above Level 3 on the FCAT 2.0 Reading

assessment was 11 percentage points higher than in 2001 under the previous assessment.386

The same basic pattern is observed for mathematics. Between 2001 and 2010, the 209.

percent of students in grades 3 through 10 scoring at or above Level 3 on the FCAT Mathematics


Copa); Exs. 1807, 1831.


Copa;) Exs. 1807, 1831.


385 Exs. 1807, 1831.


J. Copa); Exs. 1807, 1831.

82

assessment increased 18 percentage points, from 50% in 2001 to 68% in 2010.387

Though more

rigorous standards and assessments were put into place with FCAT 2.0 in 2011, the percent of

students scoring at or above Level 3 in grades 3 through 8 (Florida replaced comprehensive

grade-level mathematics assessments in grades 9 and 10 with End-of-Course assessments

(―EOCs‖) in Algebra I and Geometry in 2011) on the FCAT 2.0 Mathematics assessment was

56%, which is 6 percentage points higher than in 2001 under the previous assessment.388

Although the percentage of students scoring a Level 3 or above on the FCAT 2.0 210.

mathematics assessment did not increase overall between 2011 and 2014, this can be accounted

for by a change in the population of students taking the assessment. In 2013, grade 8 students

taking upper-level mathematics courses were no longer required to take the FCAT 2.0

mathematics assessment and instead took only the applicable mathematics EOC assessment,

generally the Algebra I EOC, so that the highest-performing students were no longer included in

the students taking the FCAT 2.0 mathematics assessment.389

Accordingly, the number of

students scoring a Level 3 or above on the Algebra I EOC increased from 55% in 2011 to 65% in

2014.390

Black and Hispanic student performance increased at a greater rate, with the percentage

of Black students scoring a Level 3 or above going from 36% in 2011 to 50% in 2014, and the

percentage of Hispanic students scoring at Level 3 or above increasing from 50% to 63%.391

Trend data on Florida‘s statewide, standardized assessments in reading and 211.

mathematics also demonstrate improvement in the performance of Florida‘s free-and-reduced-



Copa); Exs. 1810, 1832.

389 Tr. Vol. 29at 4448:25–4449:24 (Test. of J. Copa).

390 Tr. Vol. 29at 4449:25–4451:5 (Test. of J. Copa); Ex. 138.

391 Tr. Vol. 29at 4451:6–4451:23 (Test. of J. Copa).

83

price-lunch-eligible students, a proxy for economically disadvantaged students. In 2001, a

higher percentage of Florida‘s economically disadvantaged students scored at achievement Level

l than scored Level 3 and above on the statewide, standardized assessment in reading. By 2004,

those lines crossed, culminating in a 20 percentage point improvement from 2001 to 2010 in the

percentage of economically disadvantaged students scoring Level 3 and above in reading.392

As was the case with all students in Florida, though more rigorous standards and 212.

assessments were put into place with FCAT 2.0 in 2011, the percent of economically

disadvantaged students scoring at or above grade level on the FCAT 2.0 reading assessment in

2014, the last year of FCAT 2.0, was higher than it was in 2001 under the previous assessment.

In fact, it was 15 percentage points higher in 2014 than in 2001 under the previous assessment.393

The same pattern of improvement occurred in mathematics for Florida‘s 213.

economically disadvantaged students. In 2001, a higher percentage of free-reduced-priced-

lunch-eligible students scored Level l rather than Level 3 and above on the statewide,

standardized assessment in mathematics. By 2010, 58% of Florida‘s economically

disadvantaged students scored Level 3 and above, a 25-percentage-point increase over 2001. In

2014, on the FCAT 2.0 administered for the first time in 2011, 46% of Florida‘s economically

disadvantaged students scored Level 3 and above, which is 13 percentage points higher than in

2001 under the previous assessment.394

The same pattern is also seen in the performance of racial subgroups on the 214.

statewide assessments in reading and mathematics, with the gaps between racial subgroups

392 Tr. Vol. 26 at 4030:2–14, 4031:24–4032:10 (Test. of P. Stewart); Tr. Vol. 29 at 4451:24–

4453:1 (Test. of J. Copa); Exs. 1809, 1812, 1833.


394 Tr. Vol. 26 at 4030:2–14, 4031:24–4032:10 (Test. of P. Stewart); Tr. Vol. 29 at 4453:2–24

(Test. of J. Copa); Exs. 1812, 1834.

84

narrowing over time. On the reading assessment, the gap between the performance of Black

students and White students decreased from 33 percentage points in 2001 to 28 percentage points

in 2010, the last administration of the FCAT, and the gap also narrowed in the four years of the

administration of the FCAT 2.0. The gap between the performance of Hispanic and White

students decreased from 24 percentage points in 2001 to 14 percentage points in 2010 during the

administration of the FCAT, and it also narrowed during the four years of FCAT 2.0.395

Similarly, on the mathematics assessment, the gap between the performance of 215.

Black students and White students decreased from 36 percentage points in 2001 to 28 percentage

points in 2010. The gap between the performance of Hispanic and White students decreased

from 21 percentage points in 2001 to 13 percentage points in 2010 during the administration of

the FCAT. And, although FCAT 2.0 performance was relatively stable, the percentage of Black

and Hispanic students scoring Level 3 or above on the Algebra I EOC also increased between

2011 and 2014.396

The achievement levels on Florida‘s statewide assessments correlate to levels of 216.

mastery of Florida‘s rigorous content standards, not to external conceptions of literacy and

educational attainment or to other assessments such as NAEP. So that, while earning a Level 1

or 2 in reading on the Florida state assessment is not an indication of illiteracy,397

earning a

Level 3 on Florida‘s state assessment is not the same as Proficient on NAEP.398

NAEP has four

395 Tr. Vol. 29 at 4453:25–4454:11 (Test. of J. Copa); Ex. 1808.


397 Tr. Vol. 26 at 4054:21–4055:11 (Test. of P .Stewart); Tr. Vol. 29 at 4360:24–4361:21 (Test.

of J. Copa); Ex. 4047 at 0122088.


85

scoring categories and Florida has five levels. A level three on Florida‘s state assessment is not

same as Proficient on NAEP; it‘s a little lower from a scoring perspective.

Advanced Placement D.

One aspect of student achievement that Florida has focused on in recent years is 217.

incentivizing more access to college-level coursework for high school students, such as

Advanced Placement (―AP‖) courses.399

Florida has seen an increase in both participation and

performance on AP examinations and is now a national leader in both participation and

performance on AP examinations.400

In 2013, 80,175 Florida graduating high school seniors had taken at least one AP 218.

exam. Students scored a 3 or higher (score needed to earn college credit) on 41,149 exams. By

comparison, in 2003, only 32,566 Florida high school seniors took at least one AP exam, with

only 19,452 scoring a 3 or higher. More graduates succeeded on AP exams in 2013 than took

them in 2003. Participation and success continued to increase in 2015, with approximately

86,000 students taking at least one AP exam and approximately 46,000 scoring a 3 or higher.401

Florida was ranked fifth in the nation for the percentage of 2013 public high 219.

school graduates who took an AP course and scored a 3 or higher (succeeded) on an AP exam.

The percentage of 2013 graduates who took AP courses and succeeded was higher in Florida

(27.3%) than the national average (20.1%). And in 2015, Florida increased to third.402



E. Hanushek); Ex. 1813.

401 Exs. 123, 3998; Tr. Vol. 30 at 4473:22–4475:24 (Test. of J. Copa).

402 Tr. Vol. 30 at 4478:25–4479:15 (Test. of J. Copa); Tr. Vol. 26 at 4020:24–4021:8 (Test. of P.

Stewart); Tr. Vol. 28 at 4203:13–4204:7 (Test. of E. Hanushek); Exs. 123, 128, 1813.

86

Florida ranked second in the nation for the increase from 2003 to 2013 in the 220.

percentage of graduates scoring 3 or higher on the AP exam during high school. Florida‘s

percentage increased by 12 points from 15.3% in 2003 to 27.3% in 2013.403

Florida has achieved significant increases in the number of Black/African-221.

American and Hispanic/Latino high school graduates participating and succeeding in AP. For

example, the number of Black/African-American graduates participating in AP nearly

quadrupled between 2003 and 2013, and the number succeeding in AP (earning a 3 or higher)

nearly tripled. The number of Hispanic/Latino graduates participating in AP more than tripled

between 2003 and 2013, and the number succeeding in AP more than doubled. These numbers

continued to increase in 2015.404

Florida has eliminated the AP participation and success gap for its 222.

Hispanic/Latino students. Hispanic/Latino students made up 25.1% of the 2013 graduating class

in Florida, yet they accounted for 27.9% of AP exam takers and 31% of AP exam takers who

scored a 3 or higher.405

Florida also has made progress in narrowing the participation and success gap for 223.

Black/African-American students. In 2003, Black/African-American graduates made up 20.3%

of students in the graduating class but only 9.7% of AP exam takers and 5.7% of AP exam takers

scoring a 3 or higher. In 2013, although making up around the same percentage of the

graduating class (20.6%), Black/African-American students comprised 14.6% of AP exam takers

403 Tr. Vol. 28 at 4203:13–4204:7 (Test. of E. Hanushek); Ex. 123, 129.

404 Exs. 126, 127, 1813, 3998; Tr. Vol. 26 at 4021:19–4022:18 (Test. of P. Stewart); Tr. Vol. 30

at 4475:25–4477:11 (Test. of J. Copa).

405 Exs. 1813, 3997 at 00118679; Tr. Vol. 26 at 4021:19–4022:1 (Test. of P. Stewart).

87

and 7.3% of AP exam takers scoring a 3 or higher. These numbers continued to increase in

2015.406

Florida has also increased AP exam participation and success among low-income 224.

graduates. In 2003, only 7.5% of graduates who had taken AP exams were low-income. By

2013 that percentage had risen to 35.2%. Success among graduates who had taken an AP exam

and who were low-income has also increased significantly. In 2003, only 7.2% of low-income

graduates scored a 3 or higher on an AP exam, compared to 31% in 2013. These numbers

continued to increase in 2015.407

These percentages translate to large increases in the number of Black/African-225.

American, Hispanic/Latino, and low-income high school graduates participating and succeeding

in AP. For example, the number of Black/African-American graduates participating in AP

nearly quadrupled between 2003 and 2013, and the number earning a 3 or higher nearly tripled.

The number of Hispanic/Latino graduates participating in AP more than tripled between 2003

and 2013, and the number succeeding in AP more than doubled. The number of low-income

students participating in AP increased by a factor of over 11 between 2003 and 2013, and the

number of low-income students scoring a 3 or higher increased more than ten-fold.408

Graduation and Drop-Out Rates E.

Florida‘s graduation rate is a four-year cohort graduation rate. A cohort is defined 226.

as a group of students on the same schedule to graduate. The graduation rate, which follows the

federally mandated calculation methodology, measures the percentage of students who graduate

406 Exs. 124, 125, 1813; Tr. Vol. 26 at 4022:9–18 (Test. of P. Stewart); Tr. Vol. 30 at 4475:25–


407 Exs. 3998, 1813; Tr. Vol. 26 at 4022:19–24, 4023:2–7 (Test. of P. Stewart); Tr. Vol. 30 at

4475:25–4477:11 (Test. of J. Copa).

408 Exs. 123, 124, 125, 126, 127, 3998.

88

within four years of their first enrollment in ninth grade. Subsequent to their enrollment in ninth

grade, students who transfer to another school outside the Florida K–12 public school system and

deceased students are removed from the calculation, while entering transfer students are included

in the graduation rate for the class with which they are scheduled to graduate, based on their date

of enrollment. 409

Florida‘s federally-compliant graduation rates show continuous improvement 227.

over time, including improvement among Black/African-American and Hispanic/Latino

students.410

In 2014–15, the most recent year for which data is available, Florida‘s high school 228.

graduation rate increased to 77.8%, an increase of 1.7 percentage points over the previous year,

and a rise of over 25 percentage points since 1998–99, the first year for which comparable data is

available.411

While all states show an ―achievement gap‖ in graduation rates among certain 229.

subgroups, including Black/African-American students and Hispanic/Latino students as

compared with White students,412

Florida has made significant progress in closing these gaps.

Graduation rates for Florida‘s Black/African-American and Hispanic/Latino students have risen

at faster rates than those for Florida‘s White students.413

409 Ex. 4050; Tr. Vol. 29 at 4443:14–4444:13 (Test. of J. Copa).

410 Exs. 4050, 5328, 5329; Tr. Vol. 26 at 3988:20–24 (Test. of P. Stewart).

411 Exs. 4050, 5329; Tr. Vol. 26 at 3988:20–24 (Test. of P. Stewart); Tr. Vol. 29 at 4444:14–


412 Ex. 4289.

413 Ex. 5328; Tr. Vol. 26 at 3992:9–22 (Test. of P. Stewart); Tr. Vol. 29 at 4445:21–4447:2 (Test.

of J. Copa).

89

In 2014–15, the graduation rates for Florida‘s Black/African-American students 230.

increased to 67.9%, an increase of 3.2 percentage points over the previous year, and a rise of

over 22 percentage points since 2003–04, the first year for which subgroup data is available.414

In 2014–15, the graduation rates for Florida‘s Hispanic/Latino students increased 231.

to 76.7%, an increase of 1.7 percentage points over the previous year, and a rise of over 21

percentage points since 2003–04, the first year for which subgroup data is available.415

Between 2003–04 and 2014–15, the graduation rate for Florida‘s White students 232.

increased at a rate of 25%, the graduation rate for Florida‘s Hispanic/Latino students increased at

a rate of 40%, and the graduation rate for Florida‘s Black/African-American student‘s increased

at a rate of 49%.416

Between 2003–04 and 2014–15, the gap between the graduation rate for Florida‘s 233.

White students and its Hispanic/Latino students has almost been cut in half, decreasing from 11.5

percentage points to 6.0 percentage points. In that same time, the gap between the graduation

rate for Florida‘s White students and its Black/African-American students decreased from 20.4

percentage points to 14.8 percentage points.417

Due to the differences in graduation requirements for each state, as well as the 234.

unique demographic composition of each state‘s student population, comparisons of graduation

rates across states are not probative. Though the federal regulations have introduced uniformity

into the method of calculating graduation rates, there remains much variability in the way states

define ―graduates,‖ and, for this reason, the United States Department of Education specifically

414 Ex. 5328.

415 Ex. 5328.

416 Ex. 5341; Tr. Vol. 26 at 3993:3–12 (Test. of P. Stewart).


90

warns against comparing graduation rates among states.418

Florida has consistently implemented

higher standards for graduation since 1999, while other states vary in their requirements for a

diploma. For example, many other states do not require students to take Algebra I before

graduating high school.419

Therefore, comparing graduation rates across states is less useful than

comparing a given state‘s graduation rate trends over time using a consistent method for

calculating the rates. In Florida‘s case, improvement in graduation rates over time is even more

telling because the standards for graduation have increased while the rates have gone up.420

Similarly, state-to-state comparisons of scores on college-admissions exams like 235.

the SAT and ACT are not probative because of states‘ varying participation rates and student

populations. The College Board ―strongly discourages‖ making such comparisons, noting that

they are ―not valid.‖421

In Florida, a relatively higher percentage of students take the SAT and

ACT than in many other states. In addition, as discussed in Section III.E above, Florida allows

concordant scores on the SAT and ACT as alternatives for the passing the grade 10 English

language arts statewide, standardized assessment. For the most recent year available,

approximately 20% of Florida students who took the SAT or ACT also scored a Level 1 or 2 on

the grade 10 English language arts assessment.422

For that reason, Florida‘s population of SAT

and ACT test-takers is likely to include more of the state‘s lower-performing students, who may

never take these exams in other states without such a policy.423

418 Ex. 1407 at 00045402; Tr. Vol. 30 at 4558:14–4559:18 (Test. of J. Copa).

419 Tr. Vol. 26 at 3994:4–17 (Test. of. P. Stewart).

420 Exs. 4050, 5328, 5329; Tr. Vol. 26 at 3994:4–17, 3991:19–3992:3 (Test. of P. Stewart).

421 Ex. 4307 at 00123355.



91

While the graduation rate has increased over the past decade, Florida‘s drop-out 236.

rate has declined. The 9th–12th grade single-year drop-out rate decreased from 3.0% in 2004–05

to 1.9% in 2013–14. The rate for Black/African-American students decreased from 3.9% in

2004–05 to 3.0% in 2013–14, and the rate for Hispanic/Latino students decreased from to 3.6%

in 2004–05 to 2.0% in 2013–14.424

Non-Promotion/Retention Rates F.

Plaintiffs‘ various complaints about Florida‘s retention policies and rates of 237.

student retention425

—and specifically the allegation that ―Florida started retaining increased

numbers of students to repeat grade 3 beginning in the 2003–04 school year‖426

—are not

supported by the weight of the evidence.

The number of students retained in Florida schools has decreased since the 2003–238.

04 school year, the year in which the State‘s third-grade reading policy was implemented.

Between 2003–04 and 2013–14, the number of students retained in 3rd grade actually decreased

by almost a third. During this same period, the number of students retained in 4th grade was cut

almost in half, and the number retained in 5th grade decreased by almost two thirds.427

At the end of the 2003–04 school year, 201,684 students were not promoted to the 239.

next grade level, a rate of over 8% of the total public school student population. By 2013–14,

though the total number of students in Florida schools had increased, the number of students

424 Exs. 2893, 2897, 3194.

425 E.g., 2d Am. Compl. ¶¶ 176–77.

426 2d Am. Compl. ¶ 192.


92

retained in-grade had decreased to a ten-year low. The percent of students retained in Florida

after the 2013–14 school year was less than 4% of Florida‘s student population.428

There also has been a significant decrease in the number and rate of students 240.

retained in 9th grade over the past ten years. (Grade 9 promotion policies are school district

decisions, and there are no state-level promotion requirements for 9th grade.429

) In the 2003–04

school year, school districts were retaining almost one out of four 9th grade students. Between

2003–04 and 2013–14, the number of students retained in ninth grade decreased by over three

quarters.430

As detailed above, Florida‘s policies, including its third-grade retention policy, 241.

have resulted in a greater number of students graduating high school, fewer students dropping

out, and fewer students being retained, all of which supports the finding that Florida students are

being provided the opportunity to obtain a high quality education.

Findings Related to Florida’s School Funding System V.

Overview A.

Funding for Florida‘s K–12 public schools is comprised of state, local and federal 242.

dollars.431

In the 2015–16 school year, over $19.7 billion in state and local funding is available

to operate public schools, plus over $2.9 billion for capital outlay.432

The amount of operating funds available to Florida school districts in 2015–16 243.

was the highest level of funding in Florida history. The level of per pupil funding, $7,105 per

428 Exs. 1805, 1816, 1817, 1853, 1854.

429 See Section II.D, above.

430 Ex. 1816; Tr. Vol. 31 at 4630:1–4631:17 (Test. of. M. Tappen).

431 Tr. Vol. 26 at 4057:3–14 (Test. of P. Stewart); § 1001.01(4), Fla. Stat.

432 Ex. 3683 at 00103646; Ex.3445;Tr. Vol. 26 at 4058:8–14 (Test. of P. Stewart); Tr. Vol. 32 at

4855:3–7, 4899:18–4900:10 (Test. of L. Champion).

93

student, was the second highest in Florida history, only slightly below the 2007–08 level at the

height of the pre-recession economy.433

Funding for education (pre-K–12 and colleges and universities) constitutes the 244.

single largest component of the state‘s general revenue budget. Since 1997–98, 52.2% of the

general revenue budget has, on average, been dedicated to education. During this same period,

the next largest share of the general revenue budget was for human services (including the

Medicaid program) (26.9%); followed by the criminal justice and corrections system (13.7%);

general government (4.4%); natural resources, environment and transportation (1.7%); and the

judicial branch (1.1%).434

The Florida Education Finance Program (―FEFP‖), described in detail below, 245.

consistently comprises over 35% of the general revenue budget.435

The Florida Education Finance Program (“FEFP”) B.

The primary mechanism for funding the operating costs of Florida K–12 schools 246.

is the Florida Education Finance Program (―FEFP‖), a complex funding formula that includes

state and local funds.436

Originally enacted in 1973, the key principles of the FEFP are as

follows:

[T]o guarantee to each student in the Florida public education system the

availability of programs and services appropriate to his educational needs that are

substantially equal to those available to any similar student notwithstanding

geographic differences and varying local economic factors.437

433 Ex. 3683 at 00103647; Tr. Vol. 26 at 4058:21–4059:1 (Test. of P. Stewart); Tr. Vol. 33 at

4947:11–25 (Test. of L. Champion); Tr. Vol. 32 at 4870:13–24 (Test. of L. Champion).

434 Ex. 230; Tr. Vol. 34 at 5043:12–5046:17 (Test. of A. Baker).

435 Ex. 230.

436 Tr. Vol. 26 at 4057:3–14 (Test. of P. Stewart); Tr. Vol. 32 at 4806:14–22 (Test. of L.

Champion).

437 Ex. 3680 at 00103463.

94

The FEFP has been amended over time, but the key principles noted above have 247.

remained in place.438

To equalize educational opportunities, the FEFP formula recognizes: (1)

varying local property tax bases; (2) varying education program costs; (3) varying costs of living;

and (4) varying costs for equivalent educational costs due to sparsity and dispersion of the

student population.439

The FEFP is generally recognized as one of the most equalizing school funding 248.

formulas in the nation.440

The FEFP considers and provides funding on the basis of the actual

cost of providing educational services in various settings, and in different parts of the state.441

The Court is not persuaded by Plaintiffs‘ assertions that FEFP does not contain an 249.

express weighting for poverty.442

Plaintiffs‘ own expert witness testified that many other states

do not provide an express weighting for poverty, while many others, as Florida, provide

additional funding for lower performing students or schools.443

As discussed below, the FEFP

directs funds to districts and schools with higher percentages of low-income students as well as

to lower-performing schools.

438 Tr. Vol. 32 at 4806:14–4807:22 (Test. of L. Champion).

439 Ex. 3680 at 00103463; Tr. Vol. 26 at 4057:3–23 (Test. of P. Stewart); Tr. Vol. 32 at 4806:14–

4807:22, 4841:14–4842:19, 4813:13–4814:22, 4820:20–4822:6, 4826:11–4828:9 (Test. of L.

Champion).

440 Tr. Vol. 16 at 2361:15–2362:7 (Test. of J. Hall); Tr. Vol. 32 at 4807:3–6 (Test. of L.

Champion).

441 Tr. Vol. 32 at 4807:7–22 (Test. of L. Champion).

442 See 2d Am. Compl. ¶ 31.

443 Tr. Vol. 2 at 153:18–154:21, 155:15–158:1 (Test. of M. Rebell) (discussing Verstegen,

Deborah A., Public Education Finance Systems in the United States and Funding Policies for

Populations with Special Educational Needs, Education Policy Analysis Archives, Vol. 19 No.

21, at 17–18 (2011), available at http://epaa.asu.edu/ojs/article/view/769/923)).

95

The FEFP, through its highly equalizing components, provides additional state 250.

funding to school districts with low property wealth, which is an indication of relative poverty in

the state. As of the 2014–15 school year, 50 out of the 67 local school districts received a

majority of their FEFP funds from the state, with Union County receiving the highest percentage

at 91.06% and Monroe County receiving the lowest percentage at 19.54%.444

Overall, the state

provided approximately 56% of operating funds to school districts in the 2014–15 school year.445

In addition, as discussed in more detail below, various components of the formula 251.

provide funds targeted to address low student performance through supplemental academic

instruction and the state‘s reading program.446

The FEFP provides local school districts with flexibility to direct funds to schools 252.

with a high percentage of students in poverty. Program funds in excess of expenditure

requirements under the formula may be directed to any school or program at the discretion of the

district.447

Upon analysis of the actual expenditure of FEFP funds across the state, more 253.

funds are available to and spent in schools with the highest percentage of students in poverty. In

the 2013–14 school year, schools with the highest percentage of students in poverty spent $785,

or over 11% more per FTE student, in state and local funds, than schools with the lowest

444 Ex. 3417; Tr. Vol. 32 at 4855:12–4856:14 (Test. of L. Champion).


446 Tr. Vol. 32 at 4833:1–4834:11, 4832:2–25 (Test. of L. Champion).

447 Ex. 3424; Tr. Vol. 33 at 4961:11–16 (Test. of L. Champion); Tr. Vol. 32 at 4895:6–4896:13

(Test. of L. Champion).

96

percentage of students in poverty. When federal funds are included, $1,579 or nearly 22% more

per FTE student, was spent in high poverty schools.448

Similarly, more funds are available to and spent in lower-performing schools than 254.

in higher-performing schools. According to the most recent analysis, schools graded ―D‖ or ―F‖

expend approximately $1,200 more per student on average than ―A‖ and ―B‖ schools.449

The FEFP also results in a K–12 education system that has been recognized as 255.

one of the most efficient in the nation. Over the past two decades, Florida has achieved the

second greatest achievement gains on NAEP tests while expenditure increases during this period

have been lower than in other states.450

The Court therefore finds that Plaintiffs‘ assertions that the FEFP is deficient 256.

because it does not consider the cost of educating students, does not appropriately provide

funding for students in poverty, or does not generate adequate funding to provide students with

an opportunity to receive a high quality education is not supported by the evidence.

FEFP funds are generated primarily by multiplying the number of full time 257.

equivalent students (―FTE‖) in each of the funded education programs by cost factors to obtain

weighted FTE students. Weighted FTE students are then multiplied by a base student allocation

and by a district cost differential to determine the base funding from state and local funds.

Program cost factors are established by the Legislature and represent relative cost differences

among the FEFP programs. These costs factors are computed annually based on the actual cost

experience in schools.451



450 Ex. 197; Tr. Vol. 28 at 4200:2–4202:19 (Test. of E. Hanushek).

451 Ex. 3680 at 00103463; Tr. Vol. 32 at 4809:6–4825:19 (Test. of L. Champion).

97

The specific components of the FEFP formula are:452

258.

a. Full Time Equivalent Student. An FTE student for FEFP funding purposes is

one student in membership in one or more FEFP programs for a school year or

its equivalent. Student membership surveys are conducted according to a

schedule provided by the Commissioner of Education, typically in July,

October, February and June, and reported by school districts to the

Department of Education.453

Districts with material numbers of students

coming in or out of the district at certain times of the year may request an

alternative survey week from the Department to more accurately reflect their

student membership.454

b. Program Cost Factors. The FEFP recognizes the different costs of educating

students in various school programs through the program cost factor

calculation. Program cost factors are derived from actual school district

expenditures on the programs within the FEFP. School districts report all of

their direct and indirect costs to the Department of Education through a

program cost report. The total aggregate costs of an educational program are

divided by the FTE students for the program to derive an index of relative

452 Ex. 3437, a detailed flowchart that illustrates the calculation of FEFP funding for the 2015–

16 school year.

453 Ex. 3680 at 00103471–74; Tr. Vol. 32 at 4809:6–4813:12 (Test. of L. Champion).

454 Tr. Vol. 32 at 4811:20–4812:9 (Test. of L. Champion). Additionally, contrary to the belief of

one of Plaintiffs‘ district witnesses, Tr. Vol. 18 at 2686:11–25 (Test. of K. Ferree), students

educated by the district in non-school settings, such as juvenile justice facilities, residential

treatment facilities, or hospitals, are eligible to be counted in the districts‘ FTE, Tr. Vol. 32 at

4812:10–4813:12 (Test. of L. Champion).

98

costs, with the cost per FTE of ―Basic, Grades 4–8,‖ established as the 1.000

base. The program cost factors for the 2014–15 school year are as follows:455

Basic Programs Grade Levels Cost Factor

101 K–3 1.126

102 4–8 1.000

103 9–12 1.004

Exceptional Student

Education Programs Grade Levels Cost Factor

111 K–3 1.126

112 4–8 1.000

113 9–12 1.004

254 K–12 3.548

255 K–12 5.104

English for

Speakers of Other

Languages Programs Grade Levels Cost Factor

130 K–12 1.147

Career Education Grade Levels Cost Factor

300 9–12 1.004

c. Weighted FTE. The multiplication of the FTE students for an FEFP program

by its respective cost factor produces ―weighted FTE.‖ This calculation

weights the FTE to reflect the relative costs of the programs as represented by

the program cost factors. To provide for the planned use of FEFP funds, the

Legislature has established the following combination of programs during the

180-day regular school year and summer school: ―Group 1‖ (basic education

program) and ―Group 2‖ (Exceptional Student Education for support levels

455 Ex. 3414; Ex. 3680 at 00103474–75; Tr. Vol. 32 at 4813:13–4814:22 (Test. of L. Champion).

99

254 and 255, English for Speakers of Other Languages, and Grades 9–12

Career Education programs).456

d. Recalibrated FTE. All FTE enrollment is capped at 1.0 FTE, except for FTE

reported for Department of Juvenile Justice (DJJ) students beyond the 180-day

school year.457

e. Weighted FTE Cap. Program Group 2 has an enrollment ceiling (cap) that is

established based on each district‘s estimate of FTE in each FEFP program.

The appropriated FTE in each program is multiplied by the program‘s cost

factor. The resulting weighted FTE, aggregated by group, establishes the

group cap. After actual FTE is reported, districts with Group 2 FTE in excess

of the cap receive basic funding.458

f. Additional Weighted FTE. Students may generate FTE in addition to FTE

generated through course enrollment. The additional FTE is generated by

small districts to offset the expenditures of high-cost programs that serve a

small number of students. In addition, in order to promote the offering of

rigorous and accelerated course work, additional FTE is generated for

successful performance in Advanced Placement courses, International

Baccalaureate courses, and Advanced International Certificate of Education

courses, and for earning industry certifications and early graduation.459

456 Ex. 3680 at 00103474–75; Tr. Vol. 32 at 4814:23–4816:1 Tr. Vol. 33 at 4960:9–24 (Test. of

L. Champion).

457 Ex. 3680 at 00103473–74.

458 Ex. 3680 at 00103475; Tr. Vol. 33 at 4960:9–24 (Test. of L. Champion).


100

g. Base Student Allocation (―BSA‖). The base student allocation is determined

annually by the Legislature in the context of the overall state budget and is a

component in the calculation of base funding. For the 2015–16 school year,

the BSA was $4,154.45 (second calculation), which is the highest BSA in the

history of the FEFP.460

h. District Cost Differential (―DCD‖). The FEFP recognizes differences in cost

of living throughout the state through the district cost differential calculation.

The Commissioner of Education is required to annually compute DCDs by

adding each district‘s Florida Price Level Index for the most recent three years

and dividing the sum by three. The result is multiplied by .8 and divided by

100 and .2 is added to the product. This serves to limit the factor‘s adjustment

to 80% of the index, which is the approximate percentage of district salary

costs to total operating costs. The three-year averaging reduces the immediate

impact on districts of sudden changes in the index. Since 2000, the Florida

Price Level Index has been calculated by the Bureau of Economic and

Business Research at the University of Florida. For the 2014–15 school year,

Madison County had the lowest DCD (.9261) and Palm Beach County had the

highest (1.0290).461

i. Base Funding. Base Funding is calculated by multiplying the weighted FTE

students by the BSA and the DCD.462


461 Ex. 3680 at 00103477–78; Tr. Vol. 32 at Trial Tr. 4820:14–4822:17 (Test. of L. Champion).


101

j. Supplemental Allocation for DJJ Programs. The total weighted FTE student

membership in juvenile justice education programs in each school district is

multiplied by the amount of the state average class size reduction factor

multiplied by the district‘s DCD.463

k. Declining Enrollment Supplement. Districts that experience enrollment

decline receive supplemental funding that is determined by comparing the

unweighted FTE for the current year to the unweighted FTE of the prior year.

Twenty-five percent of the decline is multiplied by the prior year base funding

per unweighted FTE.464

l. Sparsity Supplement. The FEFP recognizes the relatively higher operating

costs of smaller districts due to sparse student population through a detailed

statutory formula.465

m. State-Funded Discretionary Contribution. Developmental research schools

(lab schools) and the Florida Virtual School are established as separate school

districts for purposes of FEFP funding. Those schools are allocated state

funds in lieu of discretionary local tax revenue that is generated for district

students by the tax base of the district where the school is located.466

n. .748 Mills Discretionary Compression. If any school district levies the full

.748 mill levy and generates an amount of funds per unweighted FTE student

that is less than the state average amount per unweighted FTE student, the





102

school district receives a discretionary millage compression supplement that,

when added to the funds generated by the district‘s .748 mill levy, is equal to

the state average.467

o. Safe Schools. State funds are provided to school districts for various safe

schools activities, including after school programs for middle school students,

middle and high school programs for correction of specific discipline

problems, implementation of conflict resolution strategies, anger and

aggression management strategies, alternative school programs, suicide

prevention programs, bullying prevention and intervention, school resource

officers, and detection dogs. All school districts receive a minimum

allocation. Additional funds are allocated to districts based on the latest

official Florida Crime Index provided by the Florida Department of Law

Enforcement and on each district‘s share of the state‘s total unweighted

student enrollment.468

p. Reading Program. State funds are provided for a comprehensive, district-wide

system of research-based reading instruction. A portion of the funds is to be

used to provide an additional hour of intensive reading instruction for students

in the 300 lowest performing elementary schools in the state. All districts

receive a minimum allocation of funds plus additional funds based on each

district‘s proportion of the total K–12 base funding.469



469 Ex. 3680 at 00103479–80; Tr. Vol. 32 at 4832:2–25 (Test. of L. Champion).

103

q. Supplemental Academic Instruction. State funds are provided to supplement

academic instruction, with a portion of these funds to be used to provide an

additional hour of intensive reading instruction for students in the 300 lowest-

performing elementary schools in the state.470

r. ESE Guaranteed Allocation. Additional state funds are provided for services

related to the special needs of students where level of service is less than

support Levels 4 and 5.471

s. Instructional Materials. State funds are provided for the purchase of

instructional materials and instructional content, as well as electronic devices

and technology equipment and infrastructure. This funding also provides

dollars for library/media materials, science lab material and supplies, dual

enrollment instructional material and digital instructional materials for

students with disabilities.472

t. Florida Teachers Classroom Supply Assistance Program. This program

provides approximately $250 for each classroom teacher for the purchase of

classroom instructional materials and supplies for use in teaching students.

State funds are allocated to districts based on the prorated total of each school

district‘s share of the total unweighted FTE student allotment.473

u. Student Transportation. State funds are provided for the safe and efficient

transportation services in school districts in support of student learning. A





104

detailed statutory formula allocates these funds to school districts and includes

indices to reward efficient bus utilization, compensate for rural population

density and adjust funding based on cost of living.474

v. Virtual Education Contribution. State funds are provided for virtual education

programs when certain FEFP components do not generate at least $5,230 per

FTE (as of the 2014–15 school year).475

w. Digital Classrooms Allocation. State funds are provided to school districts to

support school and district efforts and strategies to improve student

performance outcomes by integrating technology in classroom teaching and

learning.476

x. Required Local Effort (―RLE‖). In order to participate in the FEFP, school

districts are required to tax at a minimum level in support of their schools.

The amount of RLE is set annually and the RLE millage rate is calculated by

the Commissioner of Education on the basis of the certified tax roll from the

Department of Revenue. Adjustments are made to offset variations among

school districts in levels of property assessment. Millage rates are adjusted to

ensure that RLE does not exceed 90% of a district‘s total FEFP entitlement.477

y. Adjustments. When the enrollment projected as determined by FTE

student membership surveys exceeds the appropriated or projected FTE, FEFP





105

amounts are prorated to preserve equity in the distribution of the appropriation

of FEFP funds.478

State Categorical Funding C.

In addition to the formula components of the FEFP, certain categorical state 259.

funding is also provided to school districts as part of the Florida school funding system. These

include the class size reduction appropriation and district lottery and school recognition program

funds.479

a. Class Size Reduction. Pursuant to the voter-approved amendment to Article

IX, Section 1 of the Florida Constitution in 2002, additional operating and

capital outlay funds have been appropriated to school districts since the 2003–

04 school year. Beginning with the 2010–11 school year, Florida classrooms

could have no more than 18 students in grades pre-K through grade 3, 22

students in grades 4–8, and 25 students in grades 9–12. The class size

reduction appropriation for the 2015–16 school year was in excess of $3

billion in state funds and is used primarily to hire teachers to meet class size

requirements.480

b. District Lottery and School Recognition Program Funds. These funds provide

an incentive to school districts to maintain or improve their letter grade under

the state‘s accountability system. In particular, schools that maintain an ―A‖

letter grade, improve a letter grade or improve more than one letter grade and

maintain the improvement in the following year, receive additional funds per


479 Ex. 3680 at 00103482.

480 Exs. 132, 131, 3680 at 00103482; Tr. Vol. 32 at 4844:21–4851:1 (Test. of L. Champion).

106

FTE student in that school. The funds are used at the discretion of each

school‘s staff and the School Advisory Council.481

With respect to the class size reduction amendment, the Court finds that the State 260.

has provided sufficient funding to school districts to meet the requirements of the amendment.

From the 2003–04 school year to the 2010–11 school year, the State provided school districts

with $18.7 billion in capital and operating funds. The cost of implementing the class size

reduction requirements, as determined by the Office of Demographic and Economic Research,

was estimated to be approximately $18.4 billion during this time frame. Thus, funding exceeded

estimated costs by over $300 million.482

In addition to the provision of adequate funding for districts to achieve the 261.

specified class size reduction, the Court finds that the various school district witnesses called by

Plaintiffs confirm that their respective districts meet class size requirements.483

Non-FEFP State Funding D.

Another component of the Florida school funding system includes an annual 262.

appropriation category called ―Non-FEFP.‖ The Non-FEFP appropriation provides funds for

student mentoring programs, assistance to low performing schools, support for exceptional

education programs, regional education consortium services, teacher professional development,


482 Exs. 131, 132, 3680; Tr. Vol. 32 at 4844:21–4851:1 (Test. of L. Champion).

483 Tr. Vol. 5 at 677:15–21 (Test. of N. Vitti); Tr. Vol. 6 at 840:18–841:7 (Test. of O. Roberts);

Tr. Vol. 7 at 1030:25–1031:2 (Test. of G. Littleton); Tr. Vol. 8 at 1086:15–1087:9 (Test. of N.

Marks); Tr. Vol. 9 at 1331:10–17 (Test. of E. Roy); Tr. Vol. 11 at 1553:21–1554:3 (Dep. Test. of

M. Burke); Tr. Vol. 14 at 2057:13–23 (Test. of L. Romano); Tr. Vol. 18 at 2648:4–20 (Test. of

K. Ferree); Tr. Vol. 22 at 3281:17–3282:1 (Test. of D. Robinson); Tr. Vol. 23 at 3466:15–18

(Dep. Test. of R. Collins); Tr. Vol. 24 at 3629:23–3630:1 (Dep. Test. of J. Marte); Tr. Vol. 25at

3749:19–22 (Dep. Test. of A. Weidner); Tr. Vol. 36 at 5480:12–19 (Dep. Test. of K. Blocker);

Ex. 5364 (Dep. of C. Morrison) at 94:14–21; Ex. 5366 (Dep. of J. Preston) at 35:4–23.

107

after school programs and other initiatives. In 2014–15, the amount provided for these programs

totaled over $304 million.484

In 2015–16, overall State funding for K–12 is at its highest level ever, with the 263.

highest portion from the State on a per-pupil basis.485

In addition to funding within the K–12 system, there are numerous portions of the 264.

state budget that address the needs of school-aged children and families, including healthcare,

mental health and social worker services, counseling and family support, the Department of

Juvenile Justice, the Department of Children and Families, community health, and early

childhood education.486

Capital Outlay Funding E.

In addition to the FEFP, categorical and Non-FEFP funds described above, the 265.

Florida school funding system includes significant expenditures for capital outlay (at both the

state and local levels), as well as additional operating funds from local sources as determined by

local boards of education.487

According to a 2016 national report, Florida ranked among the top three states in 266.

the nation, exceeding the target for adequate building maintenance and construction funding.488

And in a 2010 report from the National Clearinghouse for Educational Facilities, Florida ranked



486 Ex. 230; Tr. Vol. 34 at 5043:15–5046:7 (Test. of A. Baker); Tr. Vol. 16 at 2372:2–

2375:22(Test. of J. Hall).


488 Tr. Vol. 36 at 5406:7–20 (Test. of J. Ratliff).

108

among the top five states in average per-student capital outlay and first in the nation in states

with over one million students.489

In Florida, as in most other states, capital outlay funding has historically been 267.

provided primarily from local sources.490

The primary state source for capital outlay in Florida is the Public Education 268.

Capital Outlay (―PECO‖) program. PECO funds are dedicated to funding capital projects and

related debt service for all levels of public education (K–12 public schools and colleges and

universities). The PECO program is established by Article XII, Section 9 of the Florida

Constitution, and is funded by gross receipts taxes on electricity, gas fuels, and

telecommunications and television services.491

Because the fund source of gross receipt taxes has generally been declining, there 269.

has been fluctuation in the amounts available for capital outlay. Additionally, the funding stream

had been bondable in past years, but there has not been a bonding of PECO dollars since 2010–

11. These factors combined have caused a decrease in the amount of PECO dollars available for

capital outlay in the past several years. 492

In 2014–15, K–12 public schools received $128 million in PECO appropriations 270.

for maintenance, repair, and renovation, and almost $60 million for special facilities, discussed

further below.493






109

In addition to PECO, Capital Outlay and Debt Service (―CO&DS‖) is a state 271.

source of school district and Florida College System capital outlay revenue, which is derived

from the first proceeds of motor vehicle license tag revenue each year.494

In 2013–14, $17.8

million was distributed to Florida public school districts and $87.8 million was paid for debt

service for previously-issued bonds that benefitted public schools and Florida colleges.495

The special facility construction account is funded with PECO dollars and 272.

provides necessary construction funds to school districts that have urgent construction needs but

lack sufficient resources at present and cannot reasonably anticipate sufficient resources within

three years to fund such needs. Typically, small rural school districts qualify for this funding.496

From fiscal years 1981–82 to 2015–16, the special facility construction account has funded

construction projects totaling over $1 billion. Approximately 72% of the total amount was

funded by the state and 28% by local school districts.497

As noted above, the State provided school districts with both operating and capital 273.

outlay funds to meet the class size reduction requirements of Article IX of the Florida

Constitution. The capital outlay portion of that funding from 2003–04 to 2007–08 exceeded $2.5

billion.498

State law permits local boards of education to raise significant amounts of capital 274.

outlay funds at the local level. Historically, these funds have been the primary source of funding

for support of K–12 public schools‘ capital expenditures. The three primary local funds sources

494 Ex. 3680 at 00103487, Tr. Vol. 32 at 4898:5–14 (Test. of L. Champion).

495 Ex. 3445.


497 Exs. 3440, 3728; Tr. Vol. 32 at 4913:5–25 (Test. of L. Champion).

498 Exs. 131, 2880; Tr. Vol. 32 at 4844:21–4851:1 (Test. of L. Champion).

110

are discretionary capital improvement revenue levy, school capital outlay surtax (half-cent sales

tax), and the local government infrastructure surtax.499

Florida school districts generate funding for capital outlay primarily from the 275.

Local Capital Improvement Revenue (―LCIR‖) levy, which is currently limited to 1.5 mills.500

Prior to 2008–09, authority existed to levy up to 2.0 mills. In the midst of decreased operating

revenue caused by the Great Recession, school districts determined that certain capital outlay and

maintenance items could be deferred without significant impact and, therefore, advocated to the

Legislature to redirect or transfer a portion of the LCIR levy to operations. The LCIR levy

authority was decreased by .25 mills in 2008–09 and by .25 mills in 2009–10. The RLE

operating millage in the FEFP was increased by an equivalent amount of revenue in each of the

years of the LCIR decrease, thus there was no loss in revenue to school districts as a result of this

change.501

The LCIR is a non-voted tax that may be used for remodeling and new 276.

construction projects that are recommended and approved in a five-year educational plant

survey; to rent or lease portable buildings; for maintenance, renovation and repair; for school bus

purchases; for the purchase or replacement of equipment; for the purchase, lease-purchase or

lease of new and replacement equipment hardware devices necessary for gaining access to, or

enhancing the use of electronic content and resources; for enterprise software applications; for

the payment of premiums for property and casualty insurance; and for the purchase, lease-

purchase or lease of school district vehicles.502

499 Tr. Vol. 32 at 4898:16–4899:10; 4900:20–4901:2 (Test. of L. Champion).

500 § 1011.71(2), Fla. Stat.; Tr. Vol. 32 at 4898:16–4899:6 (Test. of L. Champion).


502 Tr. Vol. 32 at 4888:8–15, 4890:2–11 (Test. of L. Champion).

111

The School Capital Outlay Surtax (Half-Cent Sales Tax) is a voted sales tax, 277.

initiated by a local board of education, not to exceed .5 percent.503

It must be approved by a

majority of electors in the county.504

The tax proceeds must be used for fixed capital

expenditures or fixed capital assets associated with construction, reconstruction, or improvement

of school facilities and campuses that have a useful life or expectancy of five years or more, and

any land acquisition, improvement, and design and engineering costs associated with such

facilities and campuses. The funds may also be used for retrofitting and technology

implementation.505

The Local Government Infrastructure Surtax is a sales tax that may be levied by 278.

the governing authority in each county after approval by majority vote of electors in the county.

The sales tax may be .5 percent or 1.0 percent.506

The proceeds of the tax are distributed to the

county, municipalities within the county, and/or school districts according to an interlocal

agreement. The revenue generated from this surtax must be used for construction,

reconstruction, or improvement of public facilities with a life expectancy of five or more years

and any land acquisition or improvement costs.507

In the 2013–14 school year, 22 districts levied the School Capital Outlay Sales 279.

Surtax or the Local Government Infrastructure Surtax.508

503 § 212.055(6), Fla. Stat.; Tr. Vol. 32 at 4900:20–4901:2 (Test. of L. Champion).



506 § 212.055(2), Fla. Stat.

507 Tr. Vol. 32 at 4900:20–4901:2 (Test. of L. Champion)

508 Ex. 3444.

112

In addition to the LCIR, the School Capital Outlay Sales Surtax, and the Local 280.

Government Infrastructure Surtax, school districts are authorized to sell bonds for capital outlay

projects to be repaid from local property taxes.509

School districts can also obtain funding for

capital purposes from impact fees assessed at the local level.510

Finally, school districts are

permitted to use up to .25 mills of their 748 discretionary operating millage for capital outlay

purposes.511

Only one school district—Miami-Dade County—currently utilizes this provision.512

For the 2013–14 school year, funding from all sources for fixed capital outlay for 281.

Florida K–12 public schools is summarized below:513

LCIR $2,009,792,890

Voted debt service 67,604,185

Local Government Infrastructure and

School Capital Outlay Surtaxes

495,979,857

Impact fees 202,651,023

Racing commission funds514

14,133,061

CO&DS 88,391,715

PECO-maintenance 6,000,000

PECO-charter schools 90,604,553

K–12 PECO special facility construction 7,870,913

509 §§ 200.001(3)(e), Fla. Stat.; Art. VII, § 12, Fla. Const.; Tr. Vol. 32 at 4894:13–16 (Test. of L.

Champion).

510 § 63.31801, Fla. Stat.; Tr. Vol. 32 at 4901:17–24 (Test. of L. Champion).

511 § 1011.71(3)(a), Fla. Stat.; Tr. Vol. 32 at 4893:17–25 (Test. of L. Champion).


513 Ex. 3445.

514 Racing Commission Funds (pari-mutuel taxes) are authorized in Article VII, Section 7 of the

Florida Constitution. Florida law, § 212.20(6)(d)6.a., Fla. Stat., directs the distribution of

$29,915,500 to be divided equally among the counties in lieu of pari-mutuel taxes, beginning

July 1, 2000. If a local or special law required that any moneys accruing to a county in fiscal

year 1999–2000 under the then-existing provisions of § 550.135, Fla. Stat., be paid directly to the

district school board, special district, or a municipal government, such payment must continue

until the local or special law is amended or repealed.

113

$2,983,028,197

As noted in the table above, the LCIR levy is the primary source of capital outlay 282.

funds for school districts. These funds are not required to be shared with charter schools, and

only three school districts provide such funding to their respective charter schools.515

Thus, the

principal source of capital outlay for charter schools has been through state PECO funds.516

In

the 2013–14 school year, on a per student basis, charters received approximately $476 per

student for capital outlay while traditional schools received approximately $1,202 per student for

capital outlay.517

Local Funding and School District Capacity - (Subject to Voter Approval) F.

The local funding sources discussed above include the RLE millage, the .748 283.

discretionary operating millage, the .25 millage levy for capital purposes, the LCIR levy, the

School Capital Outlay Surtax and the Local Government Infrastructure Surtax, voted debt

service millage and impact fees. As set forth below, subject to voter approval, school districts

can raise additional revenue through discretionary levies for operating or capital outlay, for a

period of time not to exceed two or four years.518

Article VII, § 9(b) of the Florida Constitution establishes a 10 mill limit for 284.

school purposes, which applies to the RLE millage, the .748 discretionary operating millage, the

.25 mills levy for capital purposes, the LCIR and the discretionary levy that may not exceed four


516 Id.


518 § 1011.73, Fla. Stat.

114

years. The limit does not apply to capital outlay surtaxes, voted millage for debt service, or the

discretionary millage levy that may not exceed two years.519

The discretionary levy that may not exceed four years may be levied for 285.

operations only and is subject to the 10 mill limit.520

In the 2014–15 school year, 16 districts

levied this millage, which generated over $274 million for operating purposes.521

The discretionary levy that may not exceed two years may be levied for operating 286.

or capital outlay purposes and is not subject to the 10 mill limit.522

No school districts currently

levy this millage.523

In 2014, ten school districts held voter referenda on either ad valorem millage 287.

levies for operating/capital outlay purposes or sales surtax proposals. Nine out of the ten

proposals were approved by local voters.524

As of the 2014–15 school year, no school districts levied up to the 10 mill limit 288.

imposed by the Florida Constitution.525

Accordingly, there is local revenue capacity available to

school districts under Florida law if school districts determined a need for additional revenue.526

However, it must be remembered that much of this funding capacity requires voter approval

before it can be utilized.


520 § 1011.73(2), Fla. Stat.


522 § 1011.73(1), Fla. Stat.

523 Ex. 3418; Tr. Vol. 33 at 4925:5–7, 4925:21–25 (Test. of L. Champion).

524 Ex. 3429; Tr. Vol. 33 at 4933:18–4934:11 (Test. of L. Champion). The voters in the one

school district that rejected a referenda in 2014—Hernando County—approved a revised capital

outlay surtax proposal in September 2015. Tr. Vol. 33 at 4933:18–4934:11 (Test. of L.

Champion); Tr. Vol. 14 at 2102:2–2103:23 (Test. of L. Romano).

525 Ex. 3446.

526 Ex. 3446; Tr. Vol. 33 at 4929:23–25 (Test. of L. Champion).

115

If all school districts in the state levied to the full 10 mill limit, for the 2014–15 289.

school year, districts could have raised an additional $3.78 billion or approximately $1,401 per

FTE student. To put in context, with total FEFP revenue in 2014–15 of $18.9 billion, an

additional $3.78 billion would result in approximately 20% more funding for school districts.527

Similarly, in the 2014–15 school year, 45 school districts did not levy either the 290.

School Capital Outlay Surtax or the Local Government Infrastructure Surtax.528

If these districts

were to levy a one-half cent sales tax, an additional $1.04 billion, or over $578 per capital-outlay

FTE student, would be generated for these districts.529

Some school districts have decided to reduce property tax rates, resulting in 291.

lowered tax bills for homeowners.530

Federal Funding G.

The Florida school funding system also includes the administration and allocation 292.

of significant federal funding.531

The two primary categories of federal funds administered by

the Florida Department of Education are entitlement grants and discretionary grants.

Entitlement grants are those for which the federal government establishes the 293.

specific purposes and requirements of each grant and which must be disbursed in accordance


528 Ex. 3444.


530 E.g., Tr. Vol. 6 at 832:3–12 (Test. of O. Roberts); Tr. Vol.24 at 3636:4–9, 3651:5–10,

3657:16–3658:13 (Dep. Test. of J. Marte); Exs. 1771, 1743, 1746; Tr. Vol. 11 at 1567:10–

1570:10 (Dep. Test. of M. Burke).


116

with a specified formula or procedure. In 2014–15, total elementary and secondary federal

entitlement grant funds totaled $1.8 billion.532

Discretionary grants are grants for which the U.S. Department of Education has 294.

discretion regarding how much to award, to which recipients, and for what purpose. These

grants are generally awarded on a competitive basis.533

Race to the Top (―RTT‖) is an example

of a federal competitive grant. That grant was awarded to the state of Florida beginning in the

2010–11 school year, as discussed in more detail below.534

The largest federal entitlement grant is Title I, Part A of the ESEA (approximately 295.

$777 million in 2014–15), which provides assistance to schools with high numbers or

percentages of children from low income families to help ensure that children meet challenging

state academic standards.535

The next largest federal entitlement grant is the Grants to State programs 296.

(approximately $634 million in 2014–15), which provides formula grants to assist states in

meeting the excess costs of providing special education services to children with disabilities

between the ages of 3 and 21.536

Other significant federal entitlement grants include funding for the improvement 297.

of teacher quality (approximately $103 million in 2014–15), 21st Century Community Learning

Centers (approximately $59 million in 2014–15), and English language learners education

532 Ex. 3433.


534 Ex. 3774.

535 Ex. 3433; Tr. Vol. 26 at 3971:2–3972:6 (Test. of P. Stewart); Tr. Vol. 33 at 4934:25–4935:10

(Test. of L. Champion).


117

(approximately $43 million in 2014–15).537

A federal entitlement grant is also provided for

homeless children and youth education (approximately $3 million in 2014–15).538

There are many requirements associated with the receipt of federal entitlement 298.

grants.539

Generally, a state must submit for approval an extensive plan for administration of the

funds.540

Discretionary grants generally require the submission of an application or proposal,

which may or may not be selected for funding at the amount the state requests.541

The Florida Department of Education has several offices and staff with the 299.

responsibility for the administration of federal funds.542

These include the Budget Office; the

Comptroller‘s Office; and the Bureau of Contracts, Grants and Procurement.543

The U.S. Department of Education monitors the State‘s compliance with various 300.

federal grant programs and laws, including those under ESEA Title I, the McKinney-Vento

Homeless Assistance Act, and the Individuals with Disabilities Education Act.544

In 2010, the U.S. Department of Education awarded the state of Florida a $700 301.

million RTT grant.545

The RTT was a competitive grant program that was part of the American 302.

Recovery and Reinvestment Act of 2009 (―ARRA‖).546

The RTT grant program recognized




540 Tr. Vol. 33 at 4938:24–4939:10 (Test. of L. Champion); e.g., Exs. 3973, 3395, 3405.

541 E.g., Exs. 3782, 3366, 3781.



544 Exs. 1406, 1409, 1410, 1411, 1412, 1471, 1472; Tr. Vol. 8 at 1220:25–1221:8, 1233:4–

1235:4 (Test. of L. Allen); Tr. Vol. 31 at 4657:23–4658:3, 4687:2–3 (Test. of M. Tappen).

545 Ex. 3774.

118

states with a demonstrated record of and commitment to internationally-benchmarked education

standards, high quality assessments aligned to rigorous education standards, data systems to

analyze student performance for the purpose of continuous improvement, improving the quality

of school leaders and teachers, support for struggling schools, and an emphasis on STEM

education.547

The U.S. Department of Education ranked Florida fourth out of 35 states that 303.

applied for funding in phase II of the RTT competition, and awarded the state $700 million over

a five-year grant period.548

Of the $700 million RTT grant award, $350 million was utilized for state-level 304.

projects and $350 million was allocated to school districts for identified projects in areas such as

improvement in low performing schools, professional development, STEM education, and

technology.549

Palm Beach County, a district from which Plaintiffs presented two witnesses

testifying about an alleged lack of funding, did not participate in the grant,550

voluntarily

forgoing around $37 million.551

The State Budget Process H.

In Florida, state budgeting is a year-round process involving professional staff of 305.

the various agencies of state government, legislative staff, the Governor‘s office as well as

546Tr. Vol. 20 at 3013:1–3 (Test. of H. Edenfield)

547 Exs. 1413, 3782, 3366, 3781, 3774; Tr. Vol. 20 at 3043:4–3044:4 (Test. of H. Edenfield).

548 Exs. 1413, 3774; Tr. Vol. 20 at 3013:12–20 (Test. of H. Edenfield).

549 Ex. 3434; Tr. Vol. 33 at 4941:11–19 (Test. of L. Champion); Tr. Vol. 20 at 3014:18–3015:1

(Test. of H. Edenfield).

550 Tr. Vol. 10 at 1507:1–19 (Dep. Test. of M. Burke); Tr. Vol. 22 at 3268:11–22 (Test. of D.

Robinson).


119

elected officials.552

The process is public and includes extensive opportunities for input and

comment by interested stakeholders.553

The state budgeting process is largely prescribed by the Florida Constitution and, 306.

of course, impacted by general economic conditions in the state and nation.554

The Florida Constitution requires the Legislature to prepare a balanced budget 307.

each year,555

and also requires that the state budget be developed in reference to a long range

financial outlook, which is to be based on major workload and revenue estimates.556

The

Constitution also places limits on the amount and types of revenues that can be raised.557

Florida relies on consensus estimating conferences to develop official economic, 308.

demographic, resource-demand, and revenue forecasts for use in developing the state budget.

The four principals for each conference are designated professional staff representing the

Governor‘s office, the Senate, the House of Representatives, and the Legislative Office of

Economic and Demographic Research.558

The Education Estimating Conferences develop forecasts as to public school 309.

enrollment, public schools capital outlay, FTE student enrollment, Florida College System

enrollment, and postsecondary financial aid. 559

552 Ex. 3683 at 00103643; Ex. 3436; Tr. Vol. 26 at 4059:11–4060:1 (Test. of P. Stewart); Tr.

Vol. 33 at 4945:12–4947:6 (Test. of L. Champion).

553 Tr. Vol. 26 at 4060:18–25 (Test. of P. Stewart); Tr. Vol. 33 at 4945:12–4947:6 (Test. of L.

Champion).


555 Art. III, § 19(a), Art. VII, § 1(c), (d), Fla. Const.

556 Art. III, § 19(c), Fla. Const.

557 See, e.g., Art. VII, § 5, Fla. Const.

558 Ex. 3436 at 42-6; Tr. Vol. 33 at 4998:1–4999:5 (Test. of A. Baker).

559 Ex. 3436 at 42-6; Tr. Vol. 33 at 5016:22–5018:7 (Test. of A. Baker).

120

The estimating conferences hold public meetings and provide the executive and 310.

legislative branches with professionally-developed projections upon which policy judgments and

budget decisions can be based.560

The education budget process includes the development of a Legislative Budget 311.

Request (―LBR‖) by the Department of Education. The LBR is based on input from

professionals within the Department, as well as educators and finance officers from school

districts throughout the state, and reflects educational priorities and programs for which funding

is requested. The LBR is reviewed and adopted by the State Board of Education and submitted

to the Governor and Legislature.561

The Governor prepares a budget based on estimating conference data and includes 312.

his or her policy and budget priorities. The budget is provided to the Legislature.562

The legislative phase of the budget process involves hearings before the 313.

appropriation committees which publicly review the State Board‘s LBR and the Governor‘s

recommended budget. Many organizations interested in education, such as the Florida School

Boards Association, the Florida Education Association, and the Florida Association of District

School Superintendents, provide the legislative committees and staff with position statements

and advocacy for their various education policy and budget priorities and preferences.563

The Legislature, after consideration of the agency budget requests, the Governor‘s 314.

recommended budget, information from the estimating conferences, and extensive public input,

adopts a budget and an appropriations act, which is then submitted to the Governor for signature

560 Tr. Vol. 33 at 4998:1–4999:5 (Test. of A. Baker).

561 Ex. 3436 at 42-2, 42-3, 42-5; Tr. Vol. 33 at 4945:9–4947:6 (Test. of L. Champion).

562 Ex. 3436 at 42-2; Tr. Vol. 33 at 4946:7–11 (Test. of L. Champion).

563 Ex. 3436 at 42-2, 42-3; Tr. Vol. 33 at 4945:14–4946:21 (Test. of L. Champion).

121

or veto of specific policy or budget items that he or she determines are not in the best interest of

the state.564

Florida’s Commitment to Funding Education I.

As discussed in detail below, the State has consistently prioritized funding 315.

education in the budgeting and appropriations process, despite fluctuations in the amount of

available revenue due to economic conditions.

The first sections of every appropriations act start with appropriations for 316.

education,565

and the Legislature has enacted laws seeking to protect or minimize the disruption

to education funding when the State is in a deficit scenario. For example, when the State budget

must be reduced due to overstatement of general-revenue projections, Florida law sets forth a

process to ensure that education is impacted less than other areas of the budget funded by general

revenues.566

Since 1997–98, funding for education has been the single largest component of 317.

the general revenue budget, and funding for K–12 schools, primarily through the FEFP, has been

the largest component of the education portion of the state budget.567

During the early to mid-2000s, the state experienced extraordinary economic 318.

upheaval due to the effect of the housing/real estate boom, its subsequent collapse and the Great

Recession.568

Based on gross domestic product (―GDP‖) and personal income measures, Florida

was one of the fastest growing states from 2000 to 2006, but the state experienced much more

564 Ex. 3436 at 42-2, 42-3.


566 §§ 216.221(5)(c)(1.), 215.16, Fla. Stat.

567 Exs. 230, 254, 255; Tr. Vol. 34 at 5043:12–5049:20 (Test. of A. Baker).


122

severe impacts than the nation as a whole as a result of the housing/real estate collapse. From

2008 to 2011, the state experienced four years of negative GDP.569

In 2009, the state

experienced negative personal income growth.570

The state‘s unemployment rate was only 3.3%

in 2006 and soared to 11.4% in 2009–10.571

Home foreclosure filings went from a low of 57,288

in 2005–06 to a high of 403,473 in 2008–09.572

The economic conditions described above resulted in record state revenues in the 319.

years leading up to the housing/real estate collapse. General revenue collections reached peak

levels in fiscal year 2005–06. However, the state experienced three consecutive years of year-

over-year decline in general revenue as the housing market collapsed: 2006–07 (-2.5%); 2007–

08 (-8.7%); and 2008–09 (-12.8 %). Prior to this period, there had not been a single year of loss

over the prior year during Florida‘s modern period of state budgeting.573

Although the Great Recession technically ended in June 2009, the extreme 320.

financial and economic stress experienced in Florida during these years did not reach bottom

until the spring of 2010, followed by two years of extremely fragile growth.574

Despite the historic downturn in the economy and projected shortfall in state 321.

revenues, the Legislature took steps to preserve education funding.575

In total, the appropriated

general revenue budget shrank more than $8 billion from 2007–08 to 2009–10. Although








123

general revenue funding for the FEFP was also reduced, the reductions were proportionally less

than the budget as a whole.576

The Legislature also took extraordinary steps to shore up the general revenue 322.

budget by redirecting available trust fund balances and spending down the state‘s reserves by

reducing unallocated general revenue balances and taking loans from the Budget Stabilization

Fund and Lawton Chiles Endowment Fund. These steps provided hundreds of millions of

dollars to the general revenue budget during the economic downturn.577

Another factor that mitigated the effects of the Great Recession on Florida‘s K–12 323.

schools is that the FEFP is based on a combination of state and local revenues, primarily ad

valorem property taxes. Losses in real property taxable value and tax collections lagged the

losses in state general revenue sources.578

The effects of the housing collapse on the ability to

raise property taxes for school districts did not significantly impact the FEFP until the 2009–10

school year. The loss of real property taxable value and state general revenue was partially

offset by the federal stimulus funding provided as part of the American Recovery and

Reinvestment Act of 2009. These federal dollars were intended to stabilize state and local fiscal

conditions.579

Florida received $1.78 billion in ARRA stabilization funds in fiscal years 2009–324.

10 and 2010–11. By agreement with the federal government, Florida committed to maintain the

funding level for education at all levels (K–12 and higher education) at or above the percentage

of the overall state budget spent on education in the 2008–09 fiscal year. Florida exceeded this

576 Exs. 229, 254, 255, 257; Tr. Vol. 34 at 5043:12–5054:13 (Test. of A. Baker).



579 Id.

124

requirement by funding K–12 education, alone, in 2009–10 and 2010–11 at a higher percentage

of the overall state budget than was spent on all education sectors in 2008–09.580

As Florida entered into economic recovery, however, funding for the FEFP has 325.

increased each year since fiscal year 2012–13.581

Gains in FEFP appropriations since fiscal year

2011–12 have outpaced gains to general revenue appropriations as a whole.582

Because of the extraordinary and historic economic fluctuations from fiscal years 326.

2002–03 through 2011–12, no time series or trend analysis using any one of these years, or the

period collectively, provides a valid or meaningful benchmark for analyzing education funding

in Florida. In this regard, Plaintiffs‘ focus on budgeted funding levels in the 2007–08 school

year as a benchmark against which to measure the adequacy of funding for Florida schools, is

misplaced.583

Indeed, according to one of Plaintiffs‘ expert witnesses, many states have not

returned education spending to pre-recession levels.584

Nevertheless, Florida‘s state portion of

the FEFP is the highest ever on a per-student basis.585

A more appropriate analysis of Florida‘s support of K–12 education is to examine 327.

longer periods of time that extend back to the pre-economic boom and bust cycle discussed

above.586

When analyzed over an extended period, it is evident that funding per FTE 328.

student under the FEFP has steadily increased over time:587


581 Ex. 3439.

582 Exs. 234, 255, 257; Tr. Vol. 34 at 5046:18–5052:5 (Test. of A. Baker).


584 Tr. Vol. 17 at 2751:16–2572:4 (Test. of D. Farrie).

585 Ex. 3439.


125

a. From 1990–91 through 1999–2000 (pre-housing/real estate boom), FTE

student funding increased an average of 1.98% per year.

b. From 2000–01 through 2007–08 (housing/real estate boom years), per FTE

student funding increased an average of 5.1% per year. However, these

funding increases were skewed based on inflated real estate values that were

unsustainable.

c. From 2008–09 through 2012–13 (Great Recession and period of declining real

estate values), per FTE funding decreased an average of 2.1% per year.

d. When combining the economic boom and bust years of 2000 to 2013, per FTE

funding increased by 2.3%, which is a higher rate of increase than the annual

rate of increase during the 1990s.

From 2013–14 to 2015–16, per student FTE increased an average of 3.69% per year.588

In 15 of the 17 years during the period from 1998–99 to 2014–15, FEFP funding 329.

per student outpaced the Consumer Price Index (―CPI‖).589

By fiscal year 2014–15, actual appropriations for the FEFP were above what the 330.

funding level would have been if the Legislature had relied solely on CPI increases and FTE

student growth to determine FEFP funding levels since 1997–98.590

Thus, despite the volatility of the overall economy and severe impact of the Great 331.

Recession on the state of Florida, funding for education has been remarkably stable, has


588 Id.



126

increased over time, and has been prioritized by state and locally elected officials and

policymakers.591

Although the FEFP does not set any particular mix or balance of state and local 332.

revenues, in only two out of the twenty-five years from 1990–91 to 2014–15, have local funds

comprised a majority of FEFP funding. That occurred in fiscal years 2008–09 and 2009–10,

when the reduction in real property taxable values lagged the reduction in state general

revenues.592

In the period 1990–91 to 2014–15, the state-local mix of FEFP funds has ranged 333.

from a high of 62% state (1997–98) to a low of 45% state (2009–10). As of the 2014–15 fiscal

year, state funds comprised 56% of total FEFP funds.593

During the Great Recession and in its aftermath, the state and local school 334.

districts reasonably managed budgets while maintaining instructional services to the classroom.

In this regard, the evidence shows that school districts maintained healthy financial reserves as

measured by the percentage of assigned and unassigned fund balance in the general fund as a

percentage of revenue in the general fund.594

This ratio is defined as the ―financial condition

ratio.‖595

The Department of Education monitors the financial condition ratio and considers 335.

a ratio of between 3% and 5% to be acceptable in most instances. As of February 1, 2009,

591 Ex. 3439; Tr. Vol. 33 at 4968:9–4969:7 (Test. of L. Champion); Exs. 230, 254, 255, 257; Tr.

Vol. 34 at 5043:12–5054:13, 5063:17–5064:13 (Test. of A. Baker).

592 Ex. 3683; Tr. Vol. 32 at 4875:5–19 (Test. of L. Champion); Ex. 260; Tr. Vol. 34 at 5054:14–

5057:2 (Test. of A. Baker).


594 Ex. 3442; Tr. Vol. 32 at 4880:22–4882:3 (Test of L. Champion).


127

school districts were required to notify the Commissioner of Education if the financial condition

ratio was projected to fall below 3%, and to submit a fiscal recovery plan if the ratio was

projected to fall below 2%.596

As shown below, during the economic downturn, the statewide financial condition 336.

ratio for all school districts combined increased, and has remained strong:597

Fiscal Year Financial Condition Ratio

2007–08 7.73%

2008–09 8.37%

2009–10 10.01%

2010–11 12.97%

2011–12 12.06%

2012–13 10.49%

2013–14 9.46%

At the same time, sufficient funding was provided by the State to meet class size 337.

requirements (as discussed in Section V.C). In addition, during the period 2004–05 to 2013–14,

the ratio of students per instructional staff improved from 14.9 to 14.0, indicating that more

instructional staff were available in schools throughout the state.598

Finally, the quality of

teaching staff has remained strong—as of the 2012–13 school year, nearly 98% of teachers were

rated ―highly effective‖ or ―effective‖ by their supervisors.599

And in the 2013–14 school year,

some 94% of classrooms were taught by teachers designated as ―highly qualified‖ under state

and federal law.600

With respect to Plaintiffs‘ allegation that Florida‘s funding for education should 338.

be evaluated and compared to funding systems and levels in other states, the Court finds that


597 Id.

598 Ex. 3412; Tr. Vol. 32 at 4874:2–18 (Test of L. Champion).

599 Exs. 1883, 1884.

600 Ex. 3368.

128

such comparisons, while probative, are not always helpful as a meaningful comparisons. For,

example, Plaintiffs‘ focus is on various methodologies which compare Florida‘s educational

spending with other states, all of which seem to show Florida at or near the bottom.601

On the

other hand Defendants want to focus on student success on national test scores, especially, when

compared to other states who spend more money on education than Florida. So, while this Court

will utilize State to State comparisons, it must be treated with the same caution that should

always accompany the examination of statistical data. In other words, while helpful, statistical

comparisons are not always capable of exact and accurate comparisons. What follows, in

paragraphs 349-342, are comparative data analyses by the Defendants which the Court did find

to be helpful in trying to understand why Plaintiffs multi-state comparison of Florida‘s

―inadequate funding‖602

are not the whole story. Spending standing alone, is not the full measure

of the matter under review.

The largest expenditure in Florida school districts (over 80%) is attributable to 339.

staff salaries and benefits.603

Yet, as detailed in Section VI below, the evidence indicates that

sufficient funding has been provided to hire sufficient numbers of teachers to meet class size

requirements, to continue to lower students to instructional staff ratios, to hire and retain teachers

rated ―highly effective‖ or ―effective‖ by their supervisors, and to staff classrooms with ―highly

qualified‖ teachers. At the same time, school districts have, overall, maintained healthy and

stable financial condition ratios.

601 Ex. 1704. 4314, 4035; Tr. Vol. 15 at 2341:17-2342:17 (Test of J. Hall); 17 at 2514:3-2516:16

(Test of D. Farrie)

602 Id.

603 Tr. Vol. 32 at 4822:7–13 (Test of L. Champion).

129

The evidence also indicates that teacher salaries in Florida, which are set at the 340.

local school district level through collective bargaining, are competitive compared to salaries in

comparable professions in the state. Based on recent U.S. Department of Labor data, elementary

school teachers in Florida make an average of 110% of the average salary of comparable

occupations, middle school teachers in Florida make 93% of the average salary in comparable

occupations, and high school teachers in Florida make 106% of the average salary in comparable

professions.604

The weight of the evidence does indicate that the level of teacher pay in Florida

is sufficient to retain a qualified and competent teacher workforce. However, to attract teachers

to enter into and continue in the teaching profession, Florida‘s educational policy will need to

continue to address their needs. This is especially true because teachers are the most valuable

resource in the classroom, and students with poor social skills and developmental issues present

a challenge to even the most experienced, dedicated and skilled teachers.

Furthermore, national rankings of education spending relied on by Plaintiffs do 341.

not take account of or control for important differences that impact such rankings, such as cost of

living (Florida has a relatively lower cost of living compared to high-spending northeastern

states); sources and level of personal income (Florida has a relatively high percentage of income

from Social Security and retirement plans); and the share of school age population of the total

population in a state (Florida has a relatively lower proportion of school-age residents to total

residents). Without controlling for these differences, cross-state funding rankings do not provide

an apples-to-apples comparison.605

604 Exs. 200, 201, 202; Tr. Vol. 34 at 5068:10–5069:18, 5072:18–5074:22 (Test. of A. Baker).

605 Ex. 240; Tr. Vol. 34 at 5064:15–5067:22, 5070:1– 5072:17 (Test. of A. Baker).

130

In addition, national rankings presented by Plaintiffs that purport to rank the 342.

―fairness‖ of school funding systems are not connected in any way to student performance

outcomes.606

These rankings also fail as a reasonable measure because they are not based on

current spending of schools.607

According to Dr. Hanusheks‘s testimony, the extent these

rankings are based on simply spending more money without a demonstrated connection to

achievement results, they are meaningless.608

“Cost Studies” J.

Plaintiffs assert that the State should conduct a ―cost analysis‖ to determine the 343.

amount of funding to ―institute a high quality education system‖ and request that the Court order

Defendants to ―conduct studies to determine what resources and standards are necessary to

provide a high quality education.‖609

Even if there were no constitutional concerns regarding such a request, the weight 344.

of the evidence shows that cost studies are neither a superior method to Florida‘s processes for

budgeting and appropriating public funds to schools, nor have such studies been shown to be a

valid or reliable method for determining the sufficiency of public-education funding.610

As discussed in Section V.H above, the Florida budgeting and appropriations 345.

process is a constitutionally prescribed process that requires a balanced budget, requires budgets

to be prepared in accordance with a long-range financial outlook, and limits revenues that can be

606 Tr. Vol. 17 at 2552:16–2552:12 (Test. of D. Farrie).

607 Tr. Vol. 17 at 2541:4–9 (Test. of D. Farrie).

608 Exs. 175, 176, 177, 178, 179, 180, 181, 182, 286, 287, 288, 289; Tr. Vol. 28 at 4235:7–

4243:17 (Test. of E. Hanushek).

609 2d Am. Compl. ¶ 28, Prayer for Relief ¶ c(2).


131

raised.611

The process also includes substantive input from the Department of Education and

State Board of Education, reflecting education policy priorities and objectives in a legislative

budget request, input from the Governor‘s office, the Legislature, educational stakeholders and

interest groups, and the public at large. The state budgeting process considers the cost and

effectiveness of particular programmatic initiatives, and it considers growth in student

enrollment (a major driver of cost) as well as actual school-district experience in providing

various education programs.612

In addition, the FEFP has numerous cost-based elements, including the number of 346.

students to be educated (―FTE‖), program cost factors, the District Cost Differential, sparsity and

declining enrollment supplements, transportation, and the class-size-reduction categorical.613

Thus, Plaintiffs‘ assertion that the state education-funding system does not consider costs is

incorrect and is without evidentiary support.

The weight of the evidence demonstrates that Florida‘s funding system directs 347.

more funds to schools with high numbers of economically disadvantaged students and to schools

with low student performance.614

With respect to Plaintiffs‘ criticism that the FEFP does not

weigh expressly for poverty, Plaintiffs‘ own expert witnesses admitted that many states do not do

so or even allocate additional funds, as Florida does, for students with English-language-learning

or special-education needs.615

As detailed above, Florida‘s funding system also results in

611 Art. III, § 19(a), (c), Art. VII, § 1(c), (d), Fla. Const.




615 Tr. Vol. 2 at 153:18–154:21, 155:15–157:20 (Test. of M. Rebell) (discussing Verstegen,

Deborah A., Public Education Finance Systems in the United States and Funding Policies for

Populations with Special Educational Needs, Education Policy Analysis Archives, Vol. 19 No.

132

adequate funding for school districts to hire and retain adequate numbers of well-qualified

teachers and to meet class-size requirements. (See also Section VI, discussing the availability of

resources in school districts throughout Florida.)

There is insufficient evidentiary support for Plaintiffs‘ allegations that a lack of 348.

resources has adversely affected student performance. To the contrary, as discussed in Sections

IV and IX of these findings, student performance in Florida has steadily improved during periods

of school budget increases and school budget cuts, and Florida has outperformed many states

that spend considerably more per student. As discussed in Section IX, statistical analyses

demonstrate a lack of connection between the level of resources available to Florida schools and

student outcomes. The sufficiency of the funding available to Florida schools is also

demonstrated by the growing charter-school market, in which charter-school operators continue

to voluntarily operate schools on fewer dollars per student than are available to traditional public

schools.616

Plaintiffs‘ assertion that the state funding system does not result in sufficient funding

for Florida‘s public schools is not supported by the weight of the evidence.

The evidence indicates that when districts have had more funds in the past, they 349.

have spent the funds in ways that have not been demonstrated to improve student performance

outcomes, such as across-the-board pay raises.617

Therefore, testimony about the desire for

additional funds from Plaintiffs‘ school-district witnesses does not provide persuasive support

for Plaintiffs‘ assertions that more funding is needed to improve student performance.

21, at 17–18 (2011), available at http://epaa.asu.edu/ojs/article/view/769/923); Tr. Vol. 17 at

2555:20–2557:19 (Test. of D. Farrie).

616 Tr. Vol. 36 at 5351:4–5352:9 (Test. of A. Miller).

617 See, e.g., Tr. Vol. 8 at 1115:12–1117:2 (Test. of N. Marks); Tr. Vol. 9 at 1345:8–1346:11

(Test. of E. Roy); Tr. Vol. 22 at 3278:7–3279:2 (Test. of D. Robinson); Tr. Vol. 24 at 3642:6–

3643:6, 3563:24–3564:12 (Dep. Test. of J. Marte).

133

This type of testimony also illustrates the problem with cost studies: specifically, 350.

such studies purport to calculate costs based on inefficiencies built into current school

operations. All of the various cost study approaches (i.e., ―professional judgment,‖ ―evidence-

based,‖ ―successful schools,‖ ―cost function‖), assume the general structure of teacher salaries

and that the only policy to be considered is a general pay increase for existing staff—both

effective and ineffective staff. Existing programs—both effective and ineffective—are retained

in estimating costs.618

The various cost study approaches lack scientifically sound methodologies and 351.

have been shown to produce estimates of funding levels that are not connected to actual student

outcomes.619

For example, a professional judgment study conducted in the state of North Dakota

produced recommended spending patterns that could be compared with student achievement.

The schools that were furthest below the amount recommended by the professional-judgment

study produced the highest achievement, while those schools with supposedly sufficient funds,

produced the lowest achievement.620

Systematic analyses of the results of costs studies also indicate a huge variation in 352.

the level of spending that is recommended by such studies. Even after controlling for regional

cost differences, and expressing spending in constant dollars, cost studies have produced

estimates ranging from $5,000 per student to over $15,000 per student.621

In the cost studies that

were conducted in the New York adequacy litigation, for example, the estimated additional

funding ―needed‖ ranged from slightly over $1.9 billion to over $5.6 billion, or almost a 300%

618 Tr. Vol. 28 at 4227:24–4233:23 (Test. of E. Hanushek).




134

difference.622

And in adequacy litigation in Texas, cost studies were presented recommending

additional state spending ranging from $563 million on the low end to $6.171 billion on the high

end.623

These wide variations undercut the validity and reliability of cost studies.

Moreover, cost studies and subsequent funding based thereon in New York have 353.

not led to the projected levels of student performance.624

The weight of the evidence indicates

that such studies are not a reasonable or desirable alternative to the Florida school budgeting and

funding processes.

Findings Related to Resources in Florida Schools and School Districts VI.

Budgets and Expenditures A.

Florida law provides local school districts with adequate funding to allow students 354.

the opportunity to obtain a high-quality education. The evidence shows that Florida school

districts generally have healthy fund balances, strong financial ratings from outside firms such as

Moody‘s and Fitch, and the capacity to raise additional funding if the local school board and/or

the local communities desire to do so.625

And in recent years, districts statewide have annually

rolled over around $350 million in state and federal funding.626

For these reasons, the Court

finds, that overall, complaints from local school district officials about a lack of funding not

622 Tr. Vol. 2 at 136:10–23 (Test. of M. Rebell).

623 See Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 769–70 (Tex.

2005).

624 Exs. 166, 197; Tr. Vol. 28 at 4200:2–4201:5, 4218:21–4222:14 (Test. of E. Hanushek); Tr.

Vol. 2 at 142:1–145:7 (Test of M. Rebell).

625 Exs. 3442, 3446; Tr. Vol. 32 at 4880:22–4881:9 (Test. of L. Champion); Tr. Vol. 33 at

4929:23–25 (Test. of L. Champion); Tr. Vol. 22 at 3259:8–10 (Test. of D. Robinson); Tr. Vol. 11

at 1564:24–1565:9 (Dep. Test. of M. Burke); Tr. Vol. 36 at 5477:6–11 (Dep. Test. of K.

Blocker).


135

persuasive—any lack of resources is more the result of local school board and district budgeting

and resource-allocation choices, than a lack of funding made available by the State.

The vast majority of school districts have healthy reserve funds, which they were 355.

able to maintain throughout the recession.627

These funds are available for use by local school

boards to purchase additional resources, services, programs, or staff that the board feels is

necessary or desirable to educate the students in its district. State policy requires that districts

maintain a certain ―financial condition ratio,‖ equivalent to roughly 3% of the district‘s general

fund revenues.628

Many school districts have board policies to maintain balances in excess of the

required minimum, such as 5% of revenues. Most of the school districts focused on by Plaintiffs

have balances well over this minimum, some over 10% of revenues, while at the same time

witnesses from these districts complain of a lack of resources.629

For the few districts whose reserves have fallen below the state minimum, the 356.

State sent staff into the districts to assist the district administrators with accounting and

budgeting as well as identifying inefficiencies or other costs-saving and revenue-generating

opportunities.630

Many other districts with similar student enrollment and similar taxable values

have not had these issues and have been able to maintain healthy fund balances.631

Evidence

shows that, in districts with reserves that fell below the state minimum, the financial situation

627 Ex. 3442; Trial Tr. Vol. 32 at 4880:22–4881:9 (Test. of L. Champion)


629 Tr. Vol. 5 at 664:5–665:12 (Test. of N. Vitti); Tr. Vol. 6 at 834:6–22 (Test. of O. Roberts);

Tr. Vol. 11 at 1562:13–1564:23 (Dep. Test. of M. Burke); Tr. Vol. 22 at 3258:9–3260:15 (Test.

of D. Robinson); Tr. Vol. 24 at 3687:1–12 (Dep. Test. of J. Marte); Ex. 5364 (Dep. of. C.

Morrison) at 50:9–25.

630 Tr. Vol. 32 at 4884:17–4885:10 (Test. of L. Champion); Tr. Vol. 7 at 1051:3–20 (Test. of N.

Marks); Tr. Vol. 17 at 2599:20–2600:20, 2613:5–6 (Test. of K. Ferree).

631 Tr. Vol. 32 at 4885:11–4886:17 (Test. of L. Champion); Tr. Vol. 18 at 2672:24–2678:12

(Test. of K. Ferree); Exs. 3419, 3442.

136

was the result of ineffective local choices, such as a failure to reduce staff or consider school

consolidation in response to shifting populations and/or lower student enrollment, and that these

fund balances have returned to healthy levels.632

Although many districts implemented cost-saving measures during the recession 357.

beginning in 2008, witnesses testified that any cuts were kept away from the classroom—for

example, by reorganization of staff at the district administration level.633

And any programs that

were cut have been restored during the economic recovery. Testimony from district witnesses

about a supposed need for additional funding is complicated due to local political tolerances

related to property taxes. Although all of the school districts in Florida have excess capacity for

generating revenue through local property taxes or sales surtaxes, many of the district witnesses

testified that they had not considered any voter referenda to increase local taxes, analyzed how

much additional revenue would be raised, or studied voter support for such measures.634

Many

cited the ―political heat‖ on locally elected board members and superintendents involved in

raising additional revenue, while at the same time bemoaning a lack of additional revenue from

the State.635

This all strongly suggests that these are political issues about local tax policy

versus legislative request for more state funding.


633 E.g., Tr. Vol. 5 at 669:9– 670:15 (Test. of N. Vitti); Tr. Vol. 24 at 3650:1–13 (Dep. Test. of J.

Marte); Ex. 5364 (Dep. of. C. Morrison) at 119:8–120:4; Tr. Vol. 36 at 5460:3–16, 5466:7–20,

5467:23–5468:3 (Dep. Test. of K. Blocker); Tr. Vol. 7 at 994:4–7 (Test. of G. Littleton).


635 E.g., Tr. Vol. 22 at 3301:22–3302:25 (Test. of D. Robinson); Tr. Vol. 6 at 847:25–848:21

(Test. of O. Roberts); Tr. Vol. 25 at 3739:10–20 (Dep. Test. of A. Weidner).

137

Many school districts have had successful referenda to raise additional millage or 358.

sales tax revenue.636

Others, such as Citrus County, have had referenda that failed, but testimony

shows that the district was still able to maintain a high-quality education provided to students.637

Another example of the impact of local choices on revenue is Hernando County, which is just

south of Citrus County and has a similar student population. After several years of receiving

additional capital outlay funds through a half-penny sales tax, rather than asking voters to renew

the expiring half-penny sales tax, the district decided to partner with the county and city

governments on a referendum for an additional full penny, half of which would be used by the

school district in part to provide an iPad to each student. The referendum failed, but another

referendum a year later was put to the voters, this time asking only for the half-penny sales tax to

fund school facilities improvements, which passed by a wide margin.638

School district witnesses also reported that some local boards of education 359.

voluntarily forgo additional revenue that could be raised at the sole discretion of the school

board, i.e., without voter approval. For example, the school board of Indian River County chose

not to assess an additional .25 ―critical millage‖ authorized by the Legislature in 2009–10

because, according to the school district‘s finance officer, the board did not feel that the

administration had explained why the money was needed.639

And Palm Beach County chose not

to participate in the Race to the Top grant,640

forgoing an additional $37 million that could have


637 Tr. Vol. 36 at 5458:5– 5483:25 (Dep. Test. of K. Blocker).

638 Tr. Vol. 33 at 4933:22–4934:8 (Test. of L. Champion); Tr. Vol. 14 at 2102:2–2103:23 (Test.

of L. Romano).

639 Ex. 5364 (Dep. of C. Morrison) at 131:15–132:12, 132:19–133:3.

640 Tr. Vol. 10 at 1507:1–19 (Dep. Test. of M. Burke); Tr. Vol. 22 at 3268:11–22 (Test. of D.

Robinson).

138

been spent on improving achievement in low performing schools, professional development for

teachers, and other projects.641

As another example of the impact of district choices, the superintendent from 360.

Alachua County, which levies an additional voted mill for operating expenses, complained of a

lack of funding to implement a seven-period day in high schools.642

At the same time, Duval

County, which does not have any voted millage or sales surtax, has been able to fund an eight-

period day.643

Not only does the evidence show the important effect of policy choices among 361.

districts, but it also shows the impact of policy choices made by different superintendents in the

same district. Superintendents and administrators from Duval, Miami-Dade, Hernando, and

Alachua counties all testified about initiatives implemented when a new superintendent was

brought into the district.644

Some of these related to programs that the new superintendent felt

would be more effective, while others dealt with greater efficiencies in district administration, or

in consolidating schools to save costs and better focus resources. For example, the incoming

superintendent in Duval County redirected millions of dollars from the central office to the

classrooms.645

The Miami-Dade finance officer testified about budget mismanagement under the

previous superintendent, which was corrected by the current administration.646

In each case,

641 Tr. Vol. 33 at 4942:4–21(Test. of L. Champion).

642 Tr. Vol. 6 at 797:23–798:8 (Test. of O. Roberts).

643 Tr. Vol. 5 at 694:2–14 (Test. of N. Vitti).

644 E.g., Tr. Vol. 5 at 688:7– 706:18 (Test. of N. Vitti); Tr. Vol. 24 at 3564:2– 3602:9 (Dep. Test.

of J. Marte); Tr. Vol. 6 at 869:12–870:10 (Test. of O. Roberts).

645 Tr. Vol. 5 at 669:9– 670:15 (Test. of N. Vitti).

646 Tr. Vol. 24 at 3625:18–3626:2 (Dep. Test. of J. Marte).

139

there is no reason that these policies could not have been implemented earlier, using resources

more efficiently and effectively.647

In Alachua County, the incoming superintendent commissioned an external 362.

review by the Florida Association of District School Superintendents, which made several

recommendations for more effective and efficient operation of the district, many of which have

been or are being adopted.648

Additionally, before his arrival, an audit by the Auditor General

found major concerns regarding the transportation department, including large numbers of

students improperly being counted as riding district buses.649

A study was also done in Sarasota

County by an outside consulting firm, MGT of America, which made numerous

recommendations for more efficient and effective use of district funds.650

The State has limited responsibility or control over the choices made by local 363.

school boards when it comes to local taxation, budgeting, expenditures, and management

practices, all of which are properly the role of local boards under the Constitution.651

School District Programs and Accomplishments B.

Defendants introduced into evidence business records from 25 school districts—364.

comprising over two million of the State‘s approximately 2.7 million K–12 public school

students—describing their ―high quality‖ educational offerings, resources, and accomplishments.

These districts include all of those on which Plaintiffs have focused in this case, including

647 See, e.g., Tr. Vol. 5 at 688:7– 706:18 (Test. of N. Vitti); Tr. Vol. 6 at 874:23–875:3 (Test. of

O. Roberts).

648 Ex. 1722; Tr. Vol. 6 at 850:19– 859:10 (Test. of O. Roberts).

649 Ex. 3734; Tr. Vol. 6 at 859:11–861:2 (Test. of O. Roberts).

650 Ex. 1119; Tr. Vol. 25 at 3738:15–3774:18 (Dep. Test. of A. Weidner).

651 Art. IX, § 4, Fla. Const.

140

schools attended by the children of Plaintiffs.652

While these documents admittedly are putting

each district‘s ―best foot forward,‖ they set forth a detailed array of educational offerings and

accomplishments of the districts and their students. As such, the documentary evidence

presented by Defendants undercuts the credibility of complaints from Plaintiffs‘ school district

witnesses about school resources.

Among other things, the evidence shows that these school districts offer a variety 365.

of choice and magnet programs and schools; STEM, STEAM, and robotics programs; college

and career enhancement programs such as Advanced Placement, International Baccalaureate,

Cambridge, and career and technical education with industry certification; dual enrollment; and

arts, music, and many other elective and extracurricular programs. Moreover, district materials

indicate that these programs have been increasing in availability and participation through the

recession, not decreasing.653

Districts across the State also have received many national recognitions and 366.

awards. A large number of Florida high schools are recognized among the best in the nation by

652 Exs. 311–18 (Alachua); Exs. 344–47 (Bay); Exs. 352–53, 367–71 (Brevard); Exs. 373–76

(Broward); Exs. 384–88 (Citrus); Exs. 69, 563–65, 585 (Miami-Dade); Exs. 624–29 (Dixie);

Exs. 784–87, 814 (Duval); Exs. 70, 835–40 (Flagler); Ex. 842 (Franklin); Exs. 873–81

(Gadsden); Exs. 71, 72, 906–11 (Hernando); Exs. 73, 74, 927–32 (Hillsborough); Exs. 75, 76,

938–41 (Indian River); Exs. 1000–06 (Leon); Exs. 77, 1019–26, 1029, 1032, 1035 (Orange);

Exs. 1038–44 (Osceola); Exs. 1046–49, 1053 (Palm Beach); Exs. 1070–74 (Pasco); Exs. 1098,

1077 (Polk); Exs. 1103–07, 78–81 (Santa Rosa); Exs. 1111–16, 1122, 1129, 1132 (Sarasota);

Exs. 1135–41 (Seminole); Exs. 1148–51 (St. Lucie); Exs. 1190–99 (Volusia).

653 Id. See generally Tr. Vol. 5 at 660:23–734:6 (Test. of N. Vitti); Tr. Vol. 6 at 824:7–915:12

(Test. of O. Roberts); Tr. Vol. 9 at 1300:19–1351:2 (Test. of E. Roy); Tr. Vol. 14 at 2025:14–

2117:10 (Test. of L. Romano); Tr. Vol. 16 at 2456:13–2478:9 (Test. of D. Boyd); Tr. Vol. 22 at

3249:23–3315:2 (Test. of D. Robinson); Tr. Vol. 24 at 3551:9–3665:13 (Dep. Test. of J. Marte).

141

Newsweek, U.S. News & World Report, and the Washington Post.654

(See also Section VI.C

below.)

Two Florida school districts—Miami-Dade in 2012 and Orange in 2014—have 367.

been recipients of the prestigious Broad Prize, a national award given each year to the urban

school district most successful in increasing student performance and closing achievement

gaps.655

Palm Beach was a finalist for the prize in 2012, losing out to Miami-Dade.656

Miami-

Dade‘s superintendent was named National Superintendent of the Year in 2014, and

Hillsborough‘s superintendent was one of four finalists for the award in 2015.657

Accreditation of Districts and Schools C.

All Florida school districts have achieved accreditation through AdvancED, 368.

formerly known as the Southern Association of Colleges and Schools (―SACS‖), for at least all

of their high schools, and in many districts, all schools are accredited through either school- or

district-level accreditation.658

AdvancED is an outside, non-profit, non-partisan organization that

conducts rigorous, on-site external reviews of pre-K–12 schools and school systems across the

United States and in 70 other countries.659

Testimony from AdvancEd‘s representative confirms that AdvancED‘s process 369.

and standards are thorough, rigorous, and based on decades of research and experience in school

accreditation. Before accrediting a school or district, or renewing accreditation as required every

654 Id.

655 Exs. 564, 3341, 2892; Tr. Vol. 24 at 3602:2–4, 3630:11–3632:4 (Dep. Test. of J. Marte); Tr.

Vol. 23 at 3470:3–22 (Dep. Test. of R. Collins).

656 Exs.1048, 88 at 9; Tr. Vol. 22 at 3305:6–19, 3311:22–3312:18 (Test. of D. Robinson).

657 Ex. 2891.

658 Exs. 11, 12.

659 Tr. Vol. 34 at 5097:15–5098:19 (Dep. Test. of A. Bohling); Exs. 1, 2, 3, 5, 6, 7.

142

five years, AdvancED requires the school or district to submit a self-assessment report supported

by evidence certifying that it meets AdvancED‘s Standards for Quality. AdvancED then sends a

team of independent reviewers, comprised of educators, administrators, and educational experts,

into the district and/or schools. The review team not only visits the school district‘s physical

facilities, but the reviewers conduct multiple stakeholder interviews, getting input from teachers,

administrators, and parents. The review team produces an external review report, detailing the

evidence of meeting the standards, including the resources and programs available.660

Among the five accreditation standards for quality schools are ―Standard 3: 370.

Teaching and Assessing for Learning,‖ which ensures that ―The school‘s curriculum,

instructional design, and assessment practices guide and ensure teacher effectiveness and student

learning.‖661

Further, ―Standard 4: Resources and Support Systems,‖ requires that ―The school

has resources and provides services that support its purpose and direction to ensure success for

all students.‖662

(Standards 3 and 4 for school districts similarly require that ―The system‘s

curriculum, instructional design, and assessment practices guide and ensure teacher effectiveness

and student learning across all grades and courses,‖ and that ―The system has resources and

provides services in all schools that support its purpose and direction to ensure success for all

students.‖)663

The following indicators are used to evaluate whether a school meets Standard

4:664

660 Tr. Vol. 34 at 5097:1–14, 5099:9–5100:1, 5120:15– 5125:10 (Dep. Test. of A. Bohling).

661 Ex. 2 at 00000014.

662 Id.

663 Ex. 3 at 00000023.

664 Ex. 2 at 00000019–20.

143

4.1 ―Qualified professional and support staff are sufficient in number to fulfill

their roles and responsibilities necessary to support the school‘s purpose,

direction, and the educational program.‖

4.2 ―Instructional time, material resources, and fiscal resources are sufficient

to support the purpose and direction of the school.‖

4.3 ―The school maintains facilities, services, and equipment to provide a safe,

clean, and healthy environment for all students and staff.‖

4.4 ―Students and school personnel use a range of media and information

resources to support the school‘s educational programs.

4.5 ―The technology infrastructure supports the school‘s teaching, learning,

and operational needs.‖

4.6 ―The school provides support services to meet the physical, social, and

emotional needs of the student population being served.‖

4.7 ―The school provides services that support the counseling, assessment,

referral, educational, and career planning needs of all students.‖

In order to be accredited, schools must meet all of the accreditation standards as 371.

determined by AdvancED.665

In addition, all accredited districts and schools certify that they

meet these standards and also that they will notify AdvancED of any changes to their ability to

meet the standards.666

Plaintiffs‘ assertion that some of the thousands of accredited schools in

Florida have ―D‖ and ―F‖ grades is interesting.667

However, as explained by AdvancED‘s

665 Tr. Vol. 34 at 5112:4–14, 5116:7–16 (Dep. Test. of A. Bohling)

666 Ex. 10; see, e.g., Ex. 14 at 246–47.

667 Tr. Vol. 34 at 5147:10–14 (Dep. Test. of A. Bohling).

144

representative as well as one of Plaintiffs‘ superintendent witnesses, the accreditation process

looks at inputs—whether schools have the resources, systems, and policies in place to meet their

mission—not only at student performance.668

The statements made by schools and districts in

the accreditation and public documents confirming all of the resources and programs they have

available are at somewhat at variance with their testimony at trial about a need for more

resources.669

The accreditation of Florida schools and districts provides further support that the 372.

resources available are adequate to provide students with a high-quality educational opportunity.

Availability of Effective Teachers D.

Plaintiffs have presented no evidence showing that Florida schools are not able to 373.

hire and retain high-quality educators. For the 2012–13 school year, nearly 98% of teachers

were rated ―effective‖ or ―highly effective‖ by their school districts under the district‘s chosen

evaluation protocol.670

Moreover, for the 2013–14 school year, over 94% of courses were taught

by teachers meeting the ―highly qualified‖ standard under the No Child Left Behind Act.671

The comprehensive annual financial reports of many of the school districts upon 374.

which Plaintiffs focus show that, over the past decade and through the recession, student-to-

teacher ratios remained constant, and in many cases, decreased (i.e., fewer students per teacher).

These reports also show that teacher salaries were either maintained or increased.672

Indeed,

668 Tr. Vol. 34 at 5144:16–5145:12 (Dep. Test. of A. Bohling); Tr. Vol. 6 at 753:1–754:14 (Test.

of O. Roberts).

669 See, e.g., Exs. 14, 30, 71, 82, 84, 87, 88, 89, 94, 95.

670 Exs. 1883, 1884.

671 Ex. 3368.

672 Ex. 367 at 00180–81; Ex. 373 at 00009432–33; Ex. 563 at 149–51; Ex. 787 at 00015868,

00015882; Ex. 906 at 00017732–34; Ex. 932 at 00018452–53; Ex. 939 at 00018893–94; Ex.

145

testimony and documents from Duval and Miami-Dade counties, for example, highlight their

record increases in teacher salary and their focus on protecting teachers and teacher pay during

the recession, and the years since.673

It also is important to note that teacher recruitment, hiring, assignment, training, 375.

evaluation, and compensation-setting are responsibility of the local school districts, not of the

State.674

The role of local teachers‘ unions as to these matters also cannot be ignored. Teachers

are guaranteed the right to collectively bargain under the Florida Constitution and statute.675

School districts must negotiate and reach agreement with the local unions on almost all aspects

of teacher employment, including discipline and removal of ineffective teachers.676

Many school

districts go beyond what is required to be negotiated and include the entire teacher evaluation

instrument as part of their collective bargaining agreement, including the standards for a rating of

―effective‖ or ―highly effective.‖677

There is no evidence that any State teacher quality or funding policies has resulted 376.

in a lack of effective teachers to educate Florida‘s public school students. The State has

implemented numerous policies and laws to assist and support districts in identifying, retaining,

and appropriately placing effective teachers (and identifying and dealing with non-effective

1035 at 00021525–26; Ex. 1038 at 00021767–69; Ex. 1053 at 00022938, 00022941; Ex. 1070 at

00023843–45; Ex. 1098 at 00025335–36; Ex. 1122 at 00026986, 00026988; Ex. 1190 at

00028622–23.

673 Exs. 1740, 1753, 1754; Tr. Vol. 5 at 673:3–674:22 (Test. of N. Vitti); Tr. Vol. 24 at 3642:15–

3643:6.

674 Ex. 199; Tr. Vol. 31 at 4712:15–4717:7 (Test. of K. Hebda); Tr. Vol. 26 at 3970:9–16,

3973:7–21, 3975:8–13 (Test. of P. Stewart); Tr. Vol. 30 at 4608:24–4609:24 (Test. of M.

Tappen).

675 Art. I, § 6, Fla. Const.; §§ 447.201, .447.203, Fla. Stat.



146

teachers), including aligning teacher evaluations to student performance, allowing for increased

pay for teachers in hard-to-staff schools, and ending teacher tenure.

Many districts employ reading and math ―coaches‖ who assist teachers in 377.

improving the delivery of education to students. Districts also employ many other professional

staff such as counselors, psychologists, social workers, behavioral specialists, media specialists,

and IT professionals, who also support teachers and student learning.678

Compliance with Class Size E.

As detailed in Section V.C above, the State has consistently provided additional 378.

funding for school districts to meet the class-size requirements of the Florida Constitution.679

There is no credible evidence that lack of funding has caused districts to be out of 379.

compliance with class-size requirements. School district witnesses—from Duval, Alachua, Bay,

Franklin, Palm Beach, Hernando, Gadsden, Orange, Miami-Dade, Sarasota, Citrus, Indian River,

and Brevard—all testified that their districts have met and are meeting class-size requirements.680

Evidence shows that any issues with class-size compliance were quickly remedied and, in any

event, were the result of district management decisions, not a lack of state funding.681

678 Exs. 3478, 3479, 3480, 3481, 3482, 3483.

679 Exs. 131, 132, 2880, 3680 at 00103482; Tr. Vol. 32 at 4844:21–4851:1 (Test. of L.

Champion); see also Exs. 2875, 2876, 2877. 2878, 2879.


Tr. Vol. 7 at 1030:25–1031:2 (Test. of G. Littleton); Tr. Vol. 8 at 1086:15–1087:9 (Test. of N.

Marks); Tr. Vol. 9 at 1331:10–17 (Test. of E. Roy); Tr. Vol. 11 at 1553:21–1554:3 (Dep. Test. of

M. Burke); Tr. Vol. 14 at 2057:13–23 (Test. of L. Romano); Tr. Vol. 18 at 2648:4–20 (Test. of

K. Ferree); Tr. Vol. 22 at 3281:17–3282:1 (Test. of D. Robinson); Tr. Vol. 23 at 3466:15–18

(Dep. Test. of R. Collins); Tr. Vol. 24 at 3629:23–3630:1 (Dep. Test. of J. Marte); Tr. Vol. 25at

3749:19–22 (Dep. Test. of A. Weidner); Tr. Vol. 36 at 5480:12–19 (Dep. Test. of K. Blocker);

Ex. 5364 (Dep. of C. Morrison) at 94:14–21; Ex. 5366 (Dep. of J. Preston) at 35:4–23.

681 Tr. Vol. 14 at 2058:1–20 (Test. of L. Romano); Tr. Vol. 18 at 2648:4–20 (Test. of K. Ferree).

147

District and School Improvement Plans F.

As described in Section III.G above, the State‘s school improvement and 380.

differentiated accountability (―DA‖) systems require that districts and schools develop and

maintain district and school improvement plans to increase student achievement at lower-

performing schools.682

These plans, which are developed by schools and districts with the support of the 381.

Department‘s office of school improvement and DA staff, identify barriers to student

performance based on the needs of that individual school or district, strategies to overcome those

barriers, and resources available to implement these strategies.683

These plans provide districts

and schools with the opportunity to identify resources to help their lower-performing students

and to prepare district and school budgets to ensure that these resources are available.684

Facilities G.

In paragraph 42 of the Second Amended Complaint, Plaintiffs alleged that the 382.

State ―has not provided sufficient funding to meet school districts‘ school repair and

maintenance needs‖ and that ―[m]any districts have school facilities that are in need of serious

repair, including roofs that have collapsed and moldy, ‗sick‘ buildings.‖ On Defendants‘ motion,

682 Exs. 1261, 1948, 1949; Tr. Vol. 26 at 4039:20–4041:18 (Test. of P. Stewart); Tr. Vol. 30 at

4586:25–4588:1, 4591:7–4600:9, 4601:11–4602:1 (Test. of M. Tappen).

683 See, e.g., Exs. 305, 306, 309, 342, 351, 372, 378, 379, 382, 393, 394, 397, 308, 350, 395, 396,

397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 586, 587, 588, 589, 590, 591,

630, 632, 632, 633, 634, 635, 636, 637, 638, 639, 640, 641, 642, 643, 831, 833, 841, 898, 901,

902, 903, 904, 905, 925, 926, 933, 935, 936, 937, 968, 969, 971, 972, 973, 974, 975, 976, 1007,

1009, 1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1036, 1037, 1045, 1067, 1068, 1069,

1075, 1076, 1101, 1102, 1109, 1134, 1146, 1147, 1158, 1159, 1160, 1161, 1162, 1163, 1164,

1200, 1201, 1927, 1959, 1963, 1964, 1965.

684 Tr. Vol. 10 at 1418:16–1419:9, 1450:3–1451:5 (Test. of S. Houston); Tr. Vol. 12 at 1864:15–

1865:16, 1873:11– 1874:7 (Test. of G. Sitter); Tr. Vol. 30 at 4586:25–4588:1, 4591:7–4600:9,

4601:11–4602:1 (Test. of M. Tappen).

148

the Court required Plaintiffs to specifically identify any such facility conditions. In response to

the conditions then identified by Plaintiffs, one of Defendants‘ expert witnesses, John S. Ratliff,

a certified Florida building-code inspector and former Florida facilities director for the Santa

Rosa County School District, with over 30 years of experience working with and managing that

district‘s facilities program,685

conducted an in-depth study of the facilities and districts

identified by Plaintiffs. In addition to reviewing the school districts‘ financial reports, work

plans, five-year facility surveys, and other documents, Mr. Ratliff interviewed facilities

personnel in each school district with alleged facilities problems identified by Plaintiffs and

personally inspected every school with alleged facilities problems in two districts.686

Based on his experience and his study of the specific facilities that Plaintiffs 383.

identified, Mr. Ratliff testified that all of the districts identified by Plaintiffs—as well as

Florida‘s school districts in general—have access to sufficient resources to provide safe, secure,

and well-maintained facilities.687

Furthermore, with respect to the specific facilities issues that Plaintiffs identified, 384.

Mr. Ratliff concluded that none of them posed any safety or security concerns, would

detrimentally affect the delivery of educational services, or constituted a critical facilities issue

that would require the removal of students from the site.688

685 Tr. Vol. 36 at 5377:11–5378:4, 5379:3–25 (Test. of J. Ratliff).

686 Tr. Vol. 36 at 5412:24–5416:25 (Test. of J. Ratliff).

687 Tr. Vol. 36 at 5406:21–5407:17, 5428:19–5429:7 (Test. of J. Ratliff).

688 Ex. 303; Tr. Vol. 36 at 5418:5421:6 (Test. of J. Ratliff).

149

In fact, some of the maintenance issues identified by Plaintiffs had already been 385.

addressed and repaired—or related solely to schools that had been closed or facilities that were

not being used to educate students.689

It should be noted that building and maintaining educational facilities are 386.

quintessentially local responsibilities. Local school districts typically own Florida‘s school

facilities, and district personnel make myriad decisions about school location, utilization, student

assignment, contractor and material selection, repair, maintenance, cleaning, and other issues that

greatly affect the efficiency and effectiveness of the facilities program and the resources

available in any given year.690

Furthermore, local school boards make important decisions about the level of 387.

taxation to support district capital plans. As discussed in Section V.E above, state law provides

school districts with several mechanisms to raise funds for capital outlay. The amount of capital

funding available in Florida is considerable—over $2.9 billion in the 2013–14 school year.691

And according to the evidence in the record, no school district has taken full advantage of all the

capital funding sources available in Florida.692

The weight of the evidence also shows that given available sources of capital 388.

funding, the key to a successful school-facilities program is effective management practices. For

example, a report commissioned by the Alachua County School District showed that it had

budgeted almost twice as much for facilities maintenance as the similarly sized Santa Rosa

689 Tr. Vol. 36 at 5421:9–24, 5426:5–5428:18 (Test. of J. Ratliff).

690 See, e.g., Tr. Vol. 36 at 5388:7–5391:21 (Test. of J. Ratliff).


692 Tr. Vol. 36 at 5405:18–23 (Test. of. J. Ratliff).

150

County School District.693

Mr. Ratliff testified that after his visits to schools in Alachua County,

it was hard for him to see where and how the additional money in Alachua County had been

spent.694

There is no persuasive evidence that Florida‘s school facilities are not safe, 389.

secure, and in compliance with applicable codes and standards; that any maintenance issues have

not been or cannot be addressed as prioritized by individual school districts; or that there are any

facilities problems that negatively impact the education of students.

Based on witness testimony, school-district documents, and the expert testimony 390.

of Mr. Ratliff, the Court finds that school districts in Florida have access to sufficient resources

to provide safe, secure, and well-maintained facilities. The Court also finds no credible evidence

of ―collapsed roofs‖ or ―sick‖ or ―moldy‖ buildings as alleged by Plaintiffs.695

Instructional Resources H.

Witnesses testified that their schools and classrooms are equipped with suitable 391.

textbooks and instructional materials, and they have appropriate technology, including

computers, laptops, and smart boards, for use by their students and teachers.696

Under the State‘s

693 Ex. 1722 at 00049701.

694 Tr. Vol. 36 at 5431:14–5434:18 (Test. of J. Ratliff); cf. Tr. Vol. 36 at 5478:17–5479:22 (Dep.

Test. of K. Blocker) (testifying that all facilities projects in the Citrus County School District had

an identified source of funding).

695 Plaintiffs themselves stated before trial that any collapsed roofs and sick or moldy buildings

had been repaired. Pls.‘ Resp. to Order Compelling Additional Information (May 22, 2015).

696 See generally Tr. Vol. 5 at 660:23–734:6 (Test. of N. Vitti); Tr. Vol. 6 at 824:7–915:12 (Test.

of O. Roberts); Tr. Vol. 7 at 986:19–1032:13 (Test. of L. Romano); Tr. Vol. 14 at 2025:14–

2117:10 (Test. of L. Romano); Tr. Vol. 16 at 2456:13–2478:9 (Test. of D. Boyd); Tr. Vol. 22 at

3249:23–3315:2 (Test. of D. Robinson); Tr. Vol. 24 at 3551:9–3665:13 (Dep. Test. of J. Marte);

Tr. Vol. 23 at 3489:14–3541:18 (Dep. Test. of J. Hiltz); Ex. 5353 (Dep. of B. Cavallero) at

34:22–35:4, 35:8–22.

151

Digital Classrooms Plan, all districts have developed detailed technology plans and are working

toward the goal of having a one-to-one student-to-device ratio in their districts.697

The sufficiency and adequacy of instructional resources also is confirmed by the 392.

certifications made by schools and districts in their submissions to AdvancED in the

accreditation process.698

Findings Related to Special Programs and Populations VII.

The Court finds that Florida‘s education policies and funding system are 393.

providing adequate resources for students to access to a variety of choice and enrichment

programs and to support the education of all students.

Career and Technical Education A.

Florida has developed a leading career and technical education (―CTE‖) system to 394.

prepare students to be college and career ready by equipping them with core academic skills and

with relevant technical skills validated by industry in a specific career pathway. Rather than

―vocational education,‖ CTE focuses on meeting the needs of Florida‘s economy by preparing

students for today‘s high-skill, high-demand careers.699

The State has partnered with employers

to define the career pathways and skills critical to Florida‘s economy. 700

Section 1003.491, Fla.

Stat., requires articulated programs of study that align high school programs with postsecondary

certificates and degrees offered through technical centers and state colleges. The State also

697 Exs. 3475, 3476.

698 E.g., Exs. 14, 30, 71, 82, 84, 87, 88, 89, 94, 95.


700 Id.; Tr. Vol. 26 at 3951:7–3952:2 (Test. of P. Stewart).

152

provides Gold Standard Career Pathways articulation agreements, through which high school

students can earn a guaranteed number of college credits toward their AAS or AS degree.701

Florida‘s focus on CTE has allowed increasing numbers of Florida students the 395.

ability to earn industry certifications through postsecondary institutions while still in middle or

high school.702

The number of students earning industry certifications increased from 803

students in 2008 to 63,328 students in 2014.703

Virtual Education B.

Florida has been a national leader in ensuring by law that all students have full- 396.

and part-time virtual school options, with funding following each student down to the course

level. In addition to many district virtual education programs and fully online schools, Florida

Virtual School is the largest state school in the country, with over 2 million course completions

since opening in 1997.704

Since that time, the number of Florida students enrolled either full- or part-time in 397.

virtual courses increased from 307 during the 1998–99 school year to 241,299 during the 2013–

14 school year.705

Florida‘s virtual course catalog includes almost 9,000 different course

offerings, in subject areas ranging from AP Calculus to ―Art in World Cultures.‖706

Through virtual education, a student in one district who does not have access to a 398.

particular course at his home school can enroll in the course virtually. This breaks down barriers

701 Exs. 3381, 3382, 3383, 3384, 3385, 3396; Tr. Vol. 31 at 4649:3–16 (Test. of M. Tappen).

702 Tr. Vol. 26 at 3951:7–3952:2 (Test. of P. Stewart); Tr. Vol. 31 at 4651:17–4652:14, 4653:22–

4654:13 (Test. of M. Tappen).

703 Ex. 290 at 00005382; Tr. Vol. 31 at 4651:12–4652:14 (Test. of M. Tappen).

704 Exs. 195, 3389; Tr. Vol. at 4679:18–4680:9 (Test. of M. Tappen).

705 Ex. 195; Tr. Vol. at 4680:24–4681:22 (Test. of M. Tappen).

706 Ex. 3389; Tr. Vol. 26 at 3952:3–3953:7 (Test. of P. Stewart).

153

to access, particularly for students in rural areas, who are now open to a wider range of course

offerings. It also allows students who want to catch up, be remediated, or accelerate access to do

so throughout the school year.707

As described above, the evidence shows that Florida‘s high-quality virtual 399.

education programs offer families and students a greater variety of options to meet their

individual learning needs and goals.

Enhancement Programs and Dual Enrollment C.

Through its accountability system, incentive funding, and other policies, the State 400.

has encouraged school districts to offer more access to college-level coursework for high school

students.708

Students in Florida schools have access to a wide variety of nationally recognized

enrichment programs, including Advanced Placement (―AP‖), International Baccalaureate

(―IB‖), and Cambridge Advanced International Certificate of Education (―AICE‖), offering more

options for increased educational rigor for Florida students, as well as the opportunity to earn

free college credit.709

For example, as detailed above in Section IV.D, Florida has seen an increase in 401.

both participation and performance on AP examinations over the past decade. This evidence

indicates that Florida is now a national leader in both participation and performance on AP

examinations, including among low-income students and traditionally underrepresented

minorities.710

707 Tr. Vol. 26 at 3952:3–3953:7 (Test. of P. Stewart); Tr. Vol. 31 at 4680:10–23 (Test. of M.

Tappen).



M. Tappen).

710 Exs. 3997, 3998, 123, 124, 125, 126, 127.

154

Newsweek magazine annually ranks the top schools in the nation based on 402.

graduation rates; college acceptance rates; AP rates; AP or honors courses taken per student;

average SAT, ACT, and AP scores; and the percent of students enrolled in at least one AP

course. The school districts on which Plaintiffs focus—e.g., Alachua, Orange, Miami-Dade,

Palm Beach, Duval—also have confirmed their AP, IB, and AICE offerings, as well as their

national rankings in Newsweek, U.S. News & World Report, and the Washington Post.711

Florida students also have the opportunity to earn free college credit through a 403.

variety of dual-enrollment courses offered through Florida high schools.712

This allows students

the opportunity to obtain an AA degree while still in high school.713

English Language Learners D.

In addition to weighted student funding through FEFP, Florida‘s English language 404.

learners (―ELLs‖) benefit from additional funding through federal ESEA Title III dollars, based

on the number of ELLs in the school district.714

Although school districts determine how to instruct their ELLs—through 405.

bilingual, inclusion, sheltered or dual language programs—all instructional programs for ELLs

must be staffed with certified teachers, and a paraprofessional who speaks the ELLs‘ home

711 See generally Tr. Vol. 5 at 660:23–734:6 (Test. of N. Vitti); Tr. Vol. 6 at 824:7–915:12 (Test.

of O. Roberts); Tr. Vol. 9 at 1300:19–1351:2 (Test. of E. Roy); Tr. Vol. 16 at 2456:13–2478:9

(Test. of D. Boyd); Tr. Vol. 22 at 3249:23–3315:2 (Test. of D. Robinson); Tr. Vol. 24 at 3551:9–

3665:13 (Dep. Test. of J. Marte); Tr. Vol. 23 at 3406:11–3487:14 (Dep. Test. of R. Collins).

712 Exs. 3387, 3388, 3391, 3392; Tr. Vol. 31 at 4649:3–25 (Test. of M. Tappen).


714 Tr. Vol. 31 at 4658:4–16 (Test. of M. Tappen); Tr. Vol. 33 at 4937:13–15 (Test. of L.

Champion).

155

language must be available in the classroom to support instruction if there are fifteen or more

students who speak that same home language.715

Much of the education of ELLs in Florida is dictated by a 1990 consent decree 406.

issued in LULAC v. State Board of Education. The consent decree serves as the framework for

Florida‘s compliance with state and federal laws regarding the education of ELLs and ensuring

that these students have equal access to all educational programs. The consent decree dictates,

among other things, the certification and professional development required of teachers who

teach ELLs, including in their core academic courses as well as their English for Speakers of

Other Languages (―ESOL‖) courses.716

There also are requirements for bilingual aides or

teachers when fifteen or more students speaking the same language are in the same school or

classroom.717

The consent decree also requires that students entering the public schools be 407.

immediately given a home language survey, and if the child reports that their primary home

language is not English, they are further assessed for eligibility to be immediately served in an

ESOL program. At that point in time, there are services that must be provided by teachers who

are ESOL endorsed or certified.718

These students also received an ELL plan that defines the

services and the type of educational program that will be provided for that student.719

715 Tr. Vol. 31 at 4655:2–4659:14 (Test. of M. Tappen); Exs. 3398, 3399.





156

In addition to federal funding for ELL students under Title III, weighted state 408.

funding is provided to support the instruction of these students.720

Districts are required to

submit a Title III plan to show their compliance with these requirements and plans for spending

the additional funding. Districts also must provide an ESOL plan to show that they are meeting

the requirements of the consent decree and other applicable laws.721

District witnesses all

testified that they have ESOL plans and comply with all laws related to education of ELL

students.722

In accordance with federal law, ELL students are given access to the Florida 409.

Standards, including standards in English language acquisition and they are assessed on the

Comprehensive English Language Learning Assessment (―CELLA‖).723

Federal law also

requires that ELLs are tested on the statewide standards assessment—FCAT, FCAT 2.0, and now

the FSA—and that their scores are included in the state‘s accountability system.724

Once ELL students exit the ESOL program, they are no longer counted as ELLs. 410.

To exit from ESOL, Florida requires that students pass each subtest of the CELLA and also earn

a Level 3 or above on the Florida statewide standards assessment in reading.725

Because students

who earn a Level 3 or above on the statewide assessment are no longer counted as ELLs, it is not


721 Tr. Vol. 31 at 4658:4–16 (Test. of M. Tappen); e.g., Ex. 337.

722 Ex. 338; Tr. Vol. 5 at 719:7–12 (Test. of N. Vitti); Tr. Vol. 6 at 906:11–907:4 (Test. of O.

Roberts); Tr. Vol. 7 at 1015:6–1017:19 (Test. of G. Littleton).

723 Exs. 3540; Tr. Vol. 31 at 4659:19–4660:25 (Test. of M. Tappen).

724 20 U.S.C. § 6311(b)(3)(B)(vii)(III).

725 Fla. Admin. Code R. 6A-6.0903(2)(a); Tr. Vol. 31 at 4665:20–22 (Test. of M. Tappen).

157

appropriate to look at performance of ELLs on the statewide assessment as an indicator of

educational quality.726

A review of the performance of former ELLs who have exited the ESOL program 411.

shows that these students passed the state assessment at the same rate as the total student

population on the 2014 FCAT 2.0 in reading, and at a higher rate than the total student

population on the 2014 FCAT 2.0 in mathematics.727

Another indicator of the quality of the education provided to ELLs in Florida is 412.

the length of time students spend in the ESOL program. Less than a quarter of Florida‘s ELLs

spend three or more years receiving ESOL services, which research shows to be an indicator for

on-time graduation.728

The Court finds that the evidence reflects that the State has adequately provided 413.

for a system of schools to provide ELLs with the opportunity to obtain a high-quality education.

Students with Disabilities E.

Federal law—the Individuals with Disabilities Education Act (―IDEA‖)—414.

provides a complex regulatory framework for assuring that students with disabilities are provided

with a free and appropriate public education (―FAPE‖). The IDEA places obligations on local

school districts (specifically termed local educational agencies or ―LEAs‖) to provide students

with disabilities with FAPE. The State‘s role is to provide technical support to districts and to

adopt laws and rules in compliance with the IDEA.729


727 Ex. 193; Tr. Vol. 31 at 4666:4–19 (Test. of M. Tappen).

728 Ex. 194; Tr. Vol. 31 at 4666:20–4668:2 (Test. of M. Tappen).

729 20 U.S.C. §§ 1412, 1413, 1416; Exs. 3393, 3395, 3396, 3397.

158

In accordance with the IDEA, state law requires that LEAs identify students with 415.

disabilities and provide all identified students with an individual educational plan (―IEP‖) that

provides additional services or accommodations based on the student‘s individual needs.730

As

detailed in Section V.B above, the State‘s weighted funding formula provides additional funding

to districts for the education of students with disabilities, and these districts also receive federal

funding under the IDEA.731

There is no evidence that the state of Florida or any school districts in the state are 416.

not providing FAPE in compliance with the IDEA. The U.S. Department of Education monitors

compliance with federal law and has rated Florida as meeting requirements for the support of

students with disabilities and the use of IDEA funds.732

Moreover, none of the school district

witnesses called by Plaintiffs testified that they had any reason to believe that their schools or

districts were not providing FAPE or otherwise out of compliance with the IDEA.733

As described in Section III.A above, Florida also complies with federal law in 417.

providing that students with disabilities be given access to the same content standards as all

students.734

Students with significant cognitive disabilities are provided instruction in the

content of the Florida Standards appropriate to their abilities through access points. Performance

in the access points is measured through the Florida Standards Alternate Assessment.735


731 Exs. 3424, 3433; Ex. 3680 at 00103474–75, 00103480.

732 Exs. 1409, 1410, 1411.


Tr. Vol. 7 at 1015:7–11 (Test. of L. Littleton); Tr. Vol. 10 at 1513:5–13 (Dep. Test. of M.

Burke); Tr. Vol. 22 at 3280:19–3281:14 (Test. of D. Robinson); Tr. Vol. 23 at 3505:24–3506:2

(Dep. Test. of J. Hiltz); Tr. Vol. 24 at 3640:3–10, 3563:2–8 (Dep. Test. of J. Marte).


735 Tr. Vol. 20 at 2987:18–25, 2980:2–12 (Test. of C. Guerrieri); Exs. 1827, 2110, 2117.

159

Students with significant cognitive disabilities work towards the same diploma as all other

students, with the opportunity for alternate means to meet the requirements.736

In addition to federal accountability for education of students with disabilities, in 418.

2005, Florida began including the progress of students with disabilities in its school-grading

formula, with the purpose of ensuring that schools and districts would be held accountable for

providing these students with the services and accommodations necessary for them to reach their

potential.737

Florida‘s inclusion of students with disabilities in its accountability system is

supported by national research finding that schools accountable for the students-with-disabilities

subgroup were more likely than schools without accountability to move students with disabilities

from self-contained classrooms to the regular classrooms.738

Placement in the least restrictive

environment is a goal of exceptional student education under the IDEA,739

and Florida‘s policies

have resulted in an increase in the percentage of students with disabilities placed in the regular

classroom setting, from 53% in 2005–06 to 71.3% in 2013–14. In 2012–13, Florida had the

highest percentage of students with disabilities in regular classrooms of the seven largest states in

the nation, and also was higher than the national average.740

Contrary to Plaintiffs‘ allegations regarding education of students with 419.

disabilities, the fact that students with disabilities succeed at a lower rate than their non-disabled

peers on statewide assessments is not determinative of whether the State is providing for a

system in which these students may obtain a high-quality education. Nationwide results on

736 Tr. Vol. 31 at 4644:13–4647:17, 4668:3–18 (Test. of M. Tappen); Ex. 190.



739 20 U.S.C. § 1412(a)(5).


160

NAEP show that students with disabilities succeed at a lower rate than their non-disabled peers

throughout the nation, and Florida‘s students with disabilities perform at a higher level than

students nationally in several areas on NAEP.741

Based on the weight of this evidence, the Court finds that Florida has made 420.

strides in serving its students with disabilities, as evidenced by a greater percentage of students

with disabilities earning a standard high school diploma and a greater percentage of students with

disabilities being educated in the least restrictive environment—the regular classroom, with their

peers, having access to the same quality standards and instructional materials.

Students Eligible for Free-and-Reduced-Price Lunch F.

Students in poverty also benefit from ESEA Title I dollars, which support school 421.

improvement efforts in Title I schools. The local districts and schools may choose to allocate

these funds in a variety of ways, including providing additional teachers, professional

development, extra time for teaching, parent involvement activities, and other activities designed

to raise student achievement.742

The Court finds that Florida‘s policies and funding mechanisms are adequate to 422.

provide a system that allows low-income students to obtain a high-quality education. As

described in Section IV.A above, Florida‘s low-income students (identified as students eligible

for free-and-reduced-price lunch) continually outperform low-income students in other states on

NAEP. For example, Florida‘s low-income grade 4 students performed at higher levels than

students in all other states in reading in 2013 and 2015 (the most recent two administrations),743

741 Exs. 3337, 1360, 1370; Tr. Vol. 26 at 4044:15–19, 4006:18–22 (Test. of P. Stewart).

742 Tr. Vol. 26 at 3971:7–3972:8 (Test. of P. Stewart); Tr. Vol. 33 at 4935:7–4936:11 (Test. of L.

Champion); Ex. 3394; 20 U.S.C. §§ 6311–6339.

743 Exs. 139, 158, 1345, 1346, 1365.

161

and they made more gains than low-income students in any other state between 1998 and

2013.744

Students Experiencing Homelessness G.

Plaintiffs also assert that the lower performance on state assessments of Florida‘s 423.

students experiencing homelessness is evidence that the State is not meeting its obligations under

Article IX. The weight of the evidence, discussed below, does not indicate that the State‘s

accountability or funding policies are denying homeless students the opportunity to obtain a high

quality education.

The Court specifically rejects Plaintiffs‘ contentions that the lower performance 424.

on state assessments by homeless students as compared with non-homeless students is evidence

that Florida is not providing for a high-quality school system. Evidence shows that there are

many non-school factors that lead to lower performance by homeless students than their stably-

housed peers, and that this pattern is prevalent throughout the country.745

Federal law, the McKinney-Vento Homeless Assistance Act (―McKinney-425.

Vento‖), requires school districts to make sure homeless students have the same access to

education as non-homeless students.746

The Department has an office responsible for providing

districts with technical support in complying with McKinney-Vento and with administering

federal grants through McKinney-Vento.747

The U.S. Department of Education monitors states

744 Exs. 160, 162.

745 Tr. Vol. 2 at 229:2–6; 284:5–11 (Test. of K. Tobin).

746 42 U.S.C. §§ 11431, 11432.

747 Tr. Vol. 8 at 1152:18–1153:6 (Test. of L. Allen); Exs.3402, 3403, 3404, 3405.

162

for compliance with McKinney-Vento, and has found in multiple years that the state of Florida is

meeting the requirements of federal law.748

Plaintiffs‘ focus on the State‘s administration of federal McKinney-Vento sub-426.

grants, which make up a fraction of 1% of district budgets, also is misplaced. The fact that there

are no other funding sources specifically allocated to the education of homeless students is not

the sole determinant. The State has reasonable and well-considered accountability and education

policies to ensure that all students, including homeless students, are given access to the same

high-quality education. Districts are funded through the FEFP, which provides funding for each

student, including homeless students,749

and additional weighted or categorical funding is

provided for students, including homeless students, with greater needs, such as students with

disabilities, ELL students, and low-performing students.750

Districts are responsible for

allocating resources based on the needs of the students in their district, including their homeless

students. The State is not required to dictate specific funding streams and resources to be used

for each subgroup of possibly at-risk students. This is appropriately a job for the local districts

that are responsible for educating the individual students, and district witnesses confirmed that

their districts are providing appropriate services to their students experiencing homelessness.751

Additionally, many of Plaintiffs‘ contentions pertaining to homeless students—427.

and low-income students in general—appear to address the students‘ needs for social services,

748 Exs. 1471, 1472; Tr. Vol. 8 at 1233:4–1235:4 (Test. of L. Allen).

749 Tr. Vol. 8 at 1184:7–1185:21 (Test. of L. Allen); Tr. Vol. 6 at 719:21–24 (Test. of N. Vitti).

750 Exs. 3414, 3680 at 00103474–80; Tr. Vol. 32 at 4813:18–4816:19 (Test. of L. Champion); Tr.

Vol. 8 at 1184:7–1185:21 (Test. of L. Allen).


Tr. Vol. 7 at 1015:7–11 (Test. of G. Littleton); Tr. Vol. 24 at 3639:14–3640:2 (Dep. Test. of J.

Marte).

163

not specifically their educational needs. The Legislature provides for the needs of homeless and

low-income students and their families through a variety of other, non-education social-services

programs.752

Findings Related to Choice Programs VIII.

Charter Schools A.

Under Florida law, charter schools are ―part of the state‘s program of public 428.

education,‖ and ―[a]ll charter schools in Florida are public schools.‖753

Plaintiffs allege that

charter schools ―create[] an inefficient duplication of expenditures‖ and ―suffer financial

mismanagement or other financial problems.‖754

Charter schools have existed in Florida since 1996755

and are subject to the same 429.

major requirements as traditional public schools, including requirements related to academic

standards, state assessments, school grading, teacher certification, teacher evaluation, public

meetings, public records, and background screening.756

Charter schools are also required to

admit students via a random selection process if the schools are oversubscribed.757

Charter schools are subject to the supervision and oversight of local school 430.

boards, including oversight related to academic and financial performance. With the limited

exception of three developmental laboratory charter schools under § 1002.32, Fla. Stat., all

752 Ex. 230; Tr. Vol. 34 at 5043:15–5046:7 (Test. of A. Baker); Tr. Vol. 16 at 2372:2–

2375:22(Test. of J. Hall).

753 § 1002.33(1), Fla. Stat.

754 2d Am. Compl. ¶¶ 144, 145.

755 Ex. 2859; Tr. Vol. 36 at 5305:15–5306:15 (Test. of A. Miller).

756 § 1002.33(9)(a)–(f), (9)(k)(1), (16)(a)–(b), Fla. Stat.; Tr. Vol. 36 at 5304:4–14, 5310:6–

5311:24 (Test. of A. Miller).

757 § 1002.33(10)(b), Fla. Stat.; Tr. Vol. 36 at 5326:15–5327:1 (Test. of A. Miller).

164

charter schools in Florida are authorized by local school boards, which are responsible for

reviewing and approving (or denying) applications for new charter schools.758

Although an applicant whose charter-school application is denied by a local 431.

school board may appeal that decision to the Florida State Board of Education, successful

appeals (i.e., those in which the State Board overturns a local board‘s denial of the application)

are rare. From 2005 through 2013, the annual percentage of total charter-school applications that

the State Board approved after a local board‘s denial ranged from 0% to a high of only 4.2%.759

Local school boards also have the authority to close local charter schools for poor 432.

academic or financial performance, violations of the law, or other good cause.760

Funding for students in charter schools is provided in the same manner as for 433.

students in traditional public schools, which results in approximately equal operational funding,

though charter schools generally do not have access to local capital funding. Additionally, a

portion of the charter schools‘ FTE funding is held back by the local school district for

administrative costs.761

Charter schools may elect to contract with management companies to provide 434.

services to the school, but they must disclose their intent to do so in their charter-school

applications. If a local school board approves such an application, the management company is

758 § 1002.33(5), (6)(a)–(b), Fla. Stat.; Tr. Vol. 36 at 5313:10–5316:13 (Test. of A. Miller).

759 § 1002.33(6)(c), Fla. Stat.; Ex. 205; Tr. Vol. 36 at 5317:6–5320:15 (Test. of A. Miller).

760 § 1002.33(8)(a), Fla. Stat.; Tr. Vol. 36 at 5321:17–5322:10 (Test. of A, Miller).

761 § 1002.33(17), (19), 20(a), Fla. Stat.; Tr. Vol. 32 at 4908:8–4913:4 (Test. of L. Champion);

Tr. Vol. 36 at 5329:10–5334:3 (Test. of A. Miller); Ex. 210.

165

responsible to the charter school‘s governing board, which in turn is ultimately responsible to its

students and the local school district.762

Plaintiffs did not present specific, credible evidence of ―financial mismanagement 435.

or other financial problems‖ at charter schools, nor did they establish that charter schools have

any negative impact or in any way interfere with the quality of education being provided in

traditional public schools. Florida‘s charter schools serve similar student populations as

traditional public schools,763

and students enrolled in these schools are generally performing

better on average than similar students enrolled in Florida‘s traditional public schools.764

Research both in Florida and nationally supports the finding that charter schools can lead to

better student outcomes and contribute to the overall quality of the public school system.765

The State can rationally conclude that charter schools are an appropriate part of 436.

Florida‘s system of free public schools and do not undermine the uniformity, efficiency, safety,

security, or quality of that system.766

Florida Tax Credit Scholarship Program B.

The Court granted Defendant‘s Motion for Summary Judgment as to the Florida 437.

Tax Credit Scholarship Program (the ―FTC Program‖) on December 17, 2015. However, the

Court did permit Plaintiff the opportunity to present evidence as to the overall impact to local

School District budgets because of the lack of funds due to the FTC Program.

762 Fla. Admin. Code R. 6A-7.0786 (incorporating Model Florida Charter School Application by

reference); Ex. 2860 at 00071221; Tr. Vol. 36 at 5314:10–5316:13 (Test. of A. Miller).

763 Ex. 2873 at 00071390; Tr. Vol. 36 at 5325:6–5326:14 (Test. of A. Miller).

764 Exs. 2873, 2829, 2861, 2902, 2903, 2904, 2905, 2906; Tr. Vol. 36 at 5335:15–5339:23 (Test.

of A. Miller).

765 Exs. 130, 204; Tr. Vol. 35 at 5217:15–5227:1 (Test. of J. Greene).

766 See Tr. Vol. 35 at 5217:15–21 (Test. of J. Greene).

166

The Florida Tax Credit Scholarship Program (the ―FTC Program‖) allows Florida 438.

taxpayers to apply for tax credits ―to make private, voluntary contributions‖ to fund scholarships

for children attending eligible K–12 private schools.767

Plaintiffs allege that the FTC Program

violates the uniformity and efficiency requirements of Article IX, Section 1(a) by diverting

public funds to private schools that are not subject to the same requirements as schools within the

State‘s system of free public schools.

The Court has previously found that the FTC Program, which allows third parties 439.

to obtain tax credits for making private donations, does not involve public funds, legislative

appropriations, or the State‘s ―provision‖ for a ―system of free public schools‖ under Article IX.

Because the private donations that fund the FTC Program are not legislative appropriations, the

Court has previously determined that Plaintiffs lack taxpayer standing to assert a challenge to

this program under Florida law.768

Plaintiffs have also failed to prove any special injury that would allow them to 440.

challenge the FTC Program.769

Despite Plaintiffs‘ assertion ―that the State may be fairly treated as itself engaging 441.

in the funding of private school vouchers,‖770

any connection between the FTC Program and

appropriations to support Florida‘s system of free public schools—not to mention the overall

767 § 1002.395(1)(b)(1), Fla. Stat.

768 Order Granting in Part and Denying in Part Intervenors–Defendants Mot. Partial J. on

Pleadings for Failure to State Claim on Which Relief Can Be Granted (Dec. 17, 2015); Order

Granting Motions to Dismiss with Prejudice, McCall v. Scott, No. 2014 CA 002282, 2015 WL

3945409, at ¶ 5 (Fla. 2d Cir. Ct. May 18, 2015).




3945409, at ¶ 6 (Fla. 2d Cir. Ct. May 18, 2015).

770 2d Am. Compl. ¶ 78.

167

quality of that system—is purely speculative. There was no persuasive evidence presented that

the FTC Program has any direct or indirect impact on public-school funding or on the

uniformity, efficiency, safety, security, or quality of Florida‘s public schools.771

Although Plaintiffs have not shown that the FTC Program involves legislative 442.

appropriations or the diversion of public money that otherwise would have been used to fund

public schools, any such diversion, even if proved, would not have a material negative impact on

Florida‘s system of free public schools.772

Even if tax credits resulted in a decrease in the

number of students attending the public schools, local school districts are not responsible for

educating students who attend private schools.773

McKay Scholarship for Students with Disabilities C.

The John M. McKay Scholarships for Students with Disabilities Program (the 443.

―McKay Program‖) is designed for ―Students with Disabilities‖—who have specific needs

identified through an ―individual educational plan‖ or ―504 accommodation plan‖—and

primarily allows them to apply for scholarships to attend eligible private schools.774

The McKay

Program also allows students with disabilities to transfer from one public school to another.775

Plaintiffs allege that the McKay Program, like the FTC Program (but which is funded through

legislative appropriations), diverts public funds to private schools.776




3945409, at ¶¶ 6–7 (Fla. 2d Cir. Ct. May 18, 2015).

772 Tr. Vol. 36 at 5340:9–12 (Test. of A. Miller); Ex. 3154.

773 Tr. Vol. 36 at 5340:17–5341:6, 5344:9–19 (Test. of A. Miller).

774 § 1002.39(1), Fla. Stat.; Ex. 3151; Tr. Vol. 36 at 5344:20–5345:5 (Test. of A. Miller).

775 § 1002.39(1), Fla. Stat.; Ex. 3151; Tr. Vol. 36 at 5344:20–5345:5 (Test. of A. Miller).

776 2d Am. Compl. ¶ 110.

168

―Students with Disabilities‖ for the purposes of McKay Program eligibility 444.

―include K–12 students who are documented as having an intellectual disability; a speech

impairment; a language impairment; a hearing impairment, including deafness; a visual

impairment, including blindness; a dual sensory impairment; an orthopedic impairment; and

other health impairment; an emotional or behavioral disability; a specific learning disability,

including, but not limited to, dyslexia, dyscalculia, or developmental aphasia; a traumatic brain

injury; a developmental delay; or autism spectrum disorder.‖777

The McKay Program allows children with disabilities and their families to choose 445.

a public or private school that best meets the student‘s individualized, special needs.778

Parents‘

decisions to send individual children with special needs to private school do not implicate the

uniformity of the broader public school system—regardless of whether some of those parents

accept scholarship funds from the State.779

The evidence does not show that the McKay Program has a material, negative 446.

impact on public-school funding or on the uniformity, efficiency, safety, security, or quality of

Florida‘s public schools. There are approximately 30,000 students who participate in the

McKay Program (compared to roughly 2.7 million students in Florida‘s public schools), and the

total funding for the McKay Program amounts to a very small fraction of school district budgets

statewide.780

As with the FTC Program, local school districts are not responsible for educating

777 § 1002.39(1), Fla. Stat.

778 Ex. 3151.

779 See Bush v. Holmes, 919 So. 2d 392, 412 (Fla. 2006) (―Other educational programs, such as

the program for exceptional students at issue in Scavella, are structurally different from the

[Opportunity Scholarship Program struck down in Holmes], which provides a systematic private

school alternative to the public school system mandated by our constitution.‖ (emphasis added)).

780 Exs. 209, 3151; Tr. Vol. 36 at 5347:14–18, 5349:7–14 (Test. of A. Miller).

169

students who attend private schools,781

and Plaintiffs have not shown that the McKay Program

causes any material financial losses that would impair school districts‘ ability to provide

opportunities for a high-quality education in accordance with Florida law.

Similarly, research has shown that the McKay Program has a positive effect on 447.

the public schools, both in terms of lessening the incentive to over-identify students and by

increasing the quality of services of the students with disabilities in the public schools.782

The Court therefore finds that the McKay Program is rationally related to the goal 448.

of increasing the quality and efficiency of the Florida public school system.783

Findings Related to Causation IX.

Plaintiffs allege that the overall level of funding in Florida is not sufficient to 449.

provide a uniform, efficient, safe, secure and high quality system of public education.784

Plaintiffs assert that the performance outcomes for certain groups of students indicate that school

funding is insufficient.785

Plaintiffs, however, have not met their burden of proving a causal relationship 450.

between the level of resources available to schools in Florida and student outcomes. Indeed, as

described below, the weight of the evidence presented on that issue establishes a lack of any

causal relationship between additional financial resources and improved student outcomes.

Defendants presented the findings of Dr. Eric Hanushek, a professor of education 451.

and economics at Stanford University. Dr. Hanushek presented both national research findings

781 Tr. Vol. 36 at 5345:6–11 (Test. of A. Miller).

782 Tr. Vol. 35 at 5230:12–5321:6 (Test. of J. Greene).

783 See Tr. Vol. 35 at 5231:7–17 (Test. of J. Greene).

784 2d Am. Compl. ¶ 30.

785 See, e.g., id. ¶¶ 32, 45, 152, 154–55.

170

as well as those focused on Florida. Dr. Hanushek‘s analyses indicate that despite a large

infusion of additional resources into U.S. public schools over the past 50 years, including a

quadrupling of spending between 1960 and 2010 (after adjusting for inflation), math and reading

performance of students on the National Assessment of Educational Progress (―NAEP‖)786

has

shown virtually no change since 1970.787

Econometric evidence presented by Dr. Hanushek indicates that the manner in 452.

which schools historically spend additional resources, i.e., increasing teacher pay, lowering

pupil-teacher ratios, or increasing the percentage of teachers with advanced degrees and

experience, has not systematically led to higher levels of student performance.788

Dr. Hanushek analyzed student performance and spending in Florida compared to 453.

the rest of the nation. Dr. Hanushek‘s analysis indicates that on grade 4 NAEP reading tests

Florida had impressive results overall compared to other states, the second largest performance

increases from 1992 to 2013, and accomplished this improvement with the lowest per pupil

expenditure increases in the nation. In this regard, Florida is among the most efficient education

systems in the nation.789

Dr. Hanushek also found that the gains in grade 4 NAEP reading scores for 454.

students eligible for free and reduced price lunch were larger in Florida than in any other state

between 1998 and 2013. As of 2013, Florida students eligible for free and reduced price lunch

786 See Section IV.A for an explanation of NAEP.

787 Exs. 278, 164, 165; Tr. Vol. 27 at 4152:8–4156:9 (Test. of E. Hanushek).

788 Exs. 280, 185, 198; Tr. Vol. 27 at 4158:8–22, 4162:3–4172:15 (Test. of E. Hanushek); Tr.

Vol. 28 at 4205:5–4206:5 (Test. of E. Hanushek).

789 Exs. 154, 155 ,156, 157, 158, 159, 197; Tr. Vol. 27 at 4176:9–4183:3 (Test. of E. Hanushek);

Tr. Vol. 28 at 4193:12–4195:1, 4199:22–4202:3 (Test. of E. Hanushek); see also Exs. 140, 141,

142, 143, 144.

171

outperformed similarly disadvantaged students in all other states.790

(See also Section IV.A

above.)

Dr. Hanushek presented analyses showing that over time, Florida has narrowed 455.

achievement gaps—by race, ethnicity and economic position—at a greater pace than other states.

Although achievement gaps exist in all states, and have over an extended period of time,

achievement gaps in Florida are consistently lower than achievement gaps in the rest of the

nation.791

(See also Section III.A above.)

Florida has also emphasized college readiness. Dr. Hanushek presented analyses 456.

showing that between 2003 and 2013, Florida had the second highest gains among all states of

students scoring a 3 or above on Advanced Placement exams.792

(See also Section IV.D above.)

Another analysis presented by Dr. Hanushek compared the performance and 457.

spending in Florida compared to New York, a demographically similar state that experienced

large increases in education spending as the result of an adequacy lawsuit in the early 2000s.793

In particular, Dr. Hanushek‘s analysis showed that in 2002, Florida grade 4 NAEP reading scores

were well below New York‘s scores, and that from 2002 and 2013, New York per pupil spending

increased by several thousand dollars per pupil to nearly $20,000 per pupil. In Florida, by

contrast, per pupil spending remained relatively stable from 2002 and 2013 but, by 2013, Florida

students surpassed New York students on the grade 4 NAEP reading test.794

790 Exs. 160, 158; Tr. Vol. 28 at 4195:3–15 (Test. of E. Hanushek).

791 Exs. 161, 162, 196; Tr. Vol. 28 at 4195:17–4199:21 (Test. of E. Hanushek); see also Exs.

145, 146, 147, 148, 149, 150, 151, 152, 153.

792 Exs. 128, 129; Tr. Vol. 28 at 4202:20–4204:7 (Test. of E. Hanushek).



172

The Court accepts Dr. Hanushek‘s conclusions and finds that his analyses 458.

corroborate other evidence refuting Plaintiffs‘ assertions that Florida‘s system of public schools

is not efficient and that the level of resources in Florida has negatively impacted student

outcomes.795

In addition to Dr. Hanushek, Defendants presented findings of Dr. Jay Greene, a 459.

professor of education and head of the Department of Education Reform at the University of

Arkansas. Dr. Greene statistically analyzed school district-level variables throughout the state of

Florida, including per-pupil spending, teacher characteristics, and discipline rates, and found no

relationship between these variables and student outcomes.796

Specifically, Dr. Greene examined school district per-pupil expenditures and 460.

percentages of students proficient on the Florida Comprehensive Assessment Test (―FCAT‖)797

for grades 3 through 10 in reading and math; grades 5, 8, and 11 in science; as well as high-

school graduation rates, for school years 2007–08 to 2012–13. The analysis revealed no

connection between higher amounts of funding available in school districts and better student

performance.798

Dr. Greene also conducted regression analyses of spending and performance data, 461.

controlling for student demographic differences and prior levels of achievement across school

districts. The demographic characteristics that were controlled included the proportion of

minority students, proportion of students receiving free or reduced price lunch, the proportion of

795 See Tr. Vol. 28 at 4204:8–22 (Test. of E. Hanushek).

796 Tr. Vol. 35 at 5176:25–5177:15, 5209:3–15 (Test. of J. Greene).

797 See Section II.B for an explanation of the FCAT and subsequent statewide, standardized

assessments.

798 Exs. 265, 266, 267, 268; Tr. Vol. 35 at 5177:16–5183:9 (Test. of J. Greene).

173

students classified as English language learners (―ELL‖), and the proportion of students with a

disability who had an individual educational plan (―IEP‖), as well as academic outcomes in the

prior year. The purpose of these analyses was to examine whether school districts would have

better student outcomes if they had more resources, assuming school districts had the same

demographic composition and prior year‘s academic outcomes. Dr. Greene‘s regression

analyses revealed that there is no pattern between the level of spending in Florida school districts

and student performance on the FCAT or high school graduation rates.799

In addition, Dr. Greene evaluated the assertion by Plaintiffs that teacher 462.

qualifications and experience characteristics impact student performance, and that districts with

high-minority and low-income student populations have a lower percentage of qualified,

experienced teachers. Consistent with his other findings, Dr. Greene found no statistical

relationship between the proportion of novice (first-year teachers) or ―highly qualified‖ teachers,

as defined by the Florida Department of Education, and student performance on the FCAT or

high school graduation rates. Likewise, Dr. Greene found no statistical relationship between the

percentage of minority and low-income students in a district and the proportion of novice or

highly qualified teachers.800

Dr. Greene also addressed Plaintiffs‘ assertion that high suspension rates are 463.

attributable to a lack of school district resources and lead to lower student performance

outcomes. As above, Dr. Greene conducted regression analyses that controlled for student

demographic characteristics and prior student outcomes. Dr. Greene found no relationship

799 Exs. 271, 272; Tr. Vol. 35 at 5183:10–5190:19, 5192:18–5196:20 (Test. of J. Greene).

800 Exs. 273, 274, 275, 276; Tr. Vol. 35 at 5196:22–5200:4, 5201:22–5205:4 (Test. of J. Greene).

174

between the rate at which students are given out-of-school suspensions in Florida school districts

and FCAT reading, math, or science proficiency, or graduation rates.801

Finally, Dr. Greene concluded that, based on the continued improvement in 464.

student performance over time, sufficient funding is available to Florida school districts. Dr.

Greene explained that the decrease in the percent of students performing at or above Level 3

after the change to the FCAT 2.0 does not indicate a change in the quality of the system but

instead is the product of a policy judgment made by the State about where to set performance

standards.802

The Court accepts Dr. Greene‘s conclusions and finds that they corroborate other 465.

evidence in the case showing the lack of causal relationship between the level of resources

available in Florida schools and student outcomes, as well as evidence showing that the level of

resources available is sufficient for a high quality system.803

Although Plaintiffs bear the burden of proof in this case, neither Plaintiffs‘ expert 466.

witnesses nor their school-district witnesses presented analyses or studies rebutting the work of

Drs. Hanushek and Greene. In fact, the weight of the evidence shows that despite budget

cutbacks associated with the Great Recession, student performance continued to improve in the

period 2007–08 to 2014–15.804

801 Exs. 277, 279; Tr. Vol. 35 at 5206:20–5209:2 (Test. of J. Greene).

802 Tr. Vol. 35 at 5190:20–5192:7, 5211:–17–5213:6, 5273:3–5274:14 (Test. of J. Greene); Ex.

269.

803 See Tr. Vol. 35 at 5209:3–15, 5213:7–5215:4 (Test. of J. Greene).

804 See, e.g., Ex. 785; Tr. Vol. 5 at 686:24–699:18 (Test. of N. Vitti); Ex. 1048; Tr. Vol. 22 at

3291:23–3292:9, 3305:6–3306:6 (Test. of D. Robinson); Ex. 564; Tr. Vol. 24 at 3600:24–

3602:9, 3630:2–3632:4 (Dep. Test. of J. Marte); Ex. 390 at 00010443; Tr. Vol. 36 at 5474:9–

5475:19 (Dep. Test. of K. Blocker).

175

As discussed in Section IV and the discussion of Dr. Hanushek‘s testimony 467.

above, the Florida high school graduation rate is at an all-time high and has increased by over 25

points since 1998–99 and 17 points since 2007–08;805

NAEP scores continue to rise;

achievement gaps have narrowed; and more students are taking and succeeding in rigorous

Advanced Placement, International Baccalaureate, and other advanced high-school course work

than ever before. The State as a whole is performing at a higher level and has improved on

multiple measures of student performance at a faster pace than many other states in the nation.

All of this has been achieved notwithstanding the economic downturn and its impact on school-

district budgets.

Plaintiffs have failed to address causation as it relates to differences in student 468.

performance across schools and school districts in Florida. Under the Florida Constitution, local

school boards, not the State, are primarily responsible for the operation, control, and supervision

of schools.806

Dr. Greene‘s testimony and other evidence shows that some school districts in

Florida are better managed and more effective at improving student performance than other

districts, notwithstanding similar student demographics and funding levels.

The Court therefore finds that Plaintiffs have failed to satisfy their burden of 469.

proof on the causation issue.

805 Ex. 4050.

806 See generally Art. IX, § 4(b), Fla. Const.

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